When is an employer deemed to have knowledge of disability?

Facts

The Respondent is a representative organisation that brings together key contractors and trade associations in the construction industry. The Claimant was employed as a finance co-ordinator.

The parties agreed that the Claimant was a disabled person for the purposes of the Equality Act 2010. Since 2008, the Claimant has suffered from mental and psychiatric health impairments, namely stress, depression, low mood and schizophrenia, which she did not disclose to the Respondent at the time of commencing her employment. The Claimant had been working at the Respondent for 14 months and had a very poor attendance record. The Respondent dismissed the Claimant because she had poor attendance and timekeeping and could not be depended on.

Employment Tribunal

The Claimant brought a claim of disability discrimination under section 15 Equality Act 2010. The ET upheld the claim, finding that the Respondent did not have actual knowledge of the disability, but that it did have constructive knowledge.

The Respondent knew nothing more than that the Claimant suffered stress as a result of personal and family problems. The ET held that the Respondent should have made further enquiries into the Claimant’s problems and health, deciding that the Respondent had constructive knowledge accordingly.

The Respondent appealed against the ET decision on the grounds that:

• The ET was incorrect in its approach to the Respondent having constructive knowledge of the Claimant’s disability;
• The ET was incorrect to find that the dismissal was not justified;
• The ET failed to properly apportion loss and was incorrect in its approach to the assessment of loss.

Employment Appeal Tribunal

The EAT held in response to the first ground of appeal that the ET had not applied the correct test. The error was that the ET only asked itself what process the Respondent should have followed, without considering what the Respondent ought to have known. Applying that test, even if the Respondent could have been reasonably expected to do more, the Tribunal had already found that the Claimant would have continued to suppress information about her mental health issues and therefore further enquiries would have made no difference. It follows from that that the Respondent could not have had constructive knowledge.

The appeal was allowed and the EAT substituted the ET judgment with the finding that the Claimant’s claim was dismissed.

Comment

This case is an extreme example of concealment by an employee. Whilst attitudes are changing, some employees remain concerned around the stigma of mental health and the prejudice they worry they might suffer if the details/extent of their mental health issues are disclosed at work. Whilst the Respondent failed to make further enquiries into the employee’s health, because the employee concealed the information to such an extreme extent, the employer could not reasonably have been expected to know.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.