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Knowledge of disability

The Employment Appeal Tribunal in the case of A Ltd v Z has considered when an employer has constructive knowledge of an employee’s disability.

Background

The Claimant commenced employment for A Ltd (“the Company”) in February 2016. She suffered from various mental impairments including stress, depression and schizophrenia which rendered her disabled for the purposes of the Equality Act 2010 but she did not disclose these mental conditions or the fact that she was disabled to the Company. Nor did she at any time suggest that she needed any reasonable adjustments made to her role. When asked to explain why she had 30.5 days sickness absence in the last year of her employment with her previous employer, the Claimant referred to numerous different physical ailments.

During February 2016 and April 2017, the Claimant had 85 days of unscheduled absence (52 recorded as sick leave). Each absence was attributed to a physical ailment and there was no mention of any mental health conditions (which were the real reason for her absences).

In February 2017, the Claimant was signed off work sick due to “low mood” and she said that she was feeling depressed due to family problems. The Claimant was hospitalised in March 2017 for psychiatric care but did not disclose this to the Company and again attributed her absence to physical impairments.

When the Claimant returned to work in April 2017, the Company dismissed her due to unreliability because of her absences.

The Claimant made a claim for discrimination arising from disability. The question was whether the Company had knowledge of the Claimant’s disability.

The Law

An employer can have a defence to a claim of discrimination arising from disability if it can show that it did not know (“actual knowledge”) and could not reasonably be expected to have known (“constructive knowledge”) about an employee’s disability.

Decision

The Employment Tribunal upheld the claim. It decided that while the Company had not known of the Claimant’s mental conditions, it had constructive knowledge of the Claimant’s disability. This was because the Company had received fit notes and a hospital certificate in February and March 2017 which evidenced a deterioration in the Claimant’s mental health.

The Tribunal held that the Company had been obliged to enquire into the Claimant’s mental wellbeing and it was that failure to make enquiries that prevented the Company from denying any constructive knowledge.

The Employment Appeal Tribunal (“EAT”) disagreed. It held that the Tribunal had erred by not asking what the Company might reasonably have been expected to know had it made enquiries. The Tribunal had already made a finding of fact that the Claimant would have continued to supress information about her mental health conditions and would not have agreed to a medical examination that might have exposed her medical history. Therefore, even if enquiries had been made, the Company could not reasonably have been expected to know about the Claimant’s disability i.e. the Company did not have constructive knowledge of the Claimant’s disability.

Comment

This case may be helpful in instances where employees continually conceal a disability and then try to rely on it to bring a claim for discrimination arising from disability. However, employers are still under a general duty to do all they reasonably can be expected to do to find out if a worker has a disability, particularly where they are “on notice” as a result of fit notes.

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