Case update (2): Discrimination – Knowledge of Disability

Summary:  Can an employer have constructive knowledge of disability if, although it did not make sufficient enquiries into the employee’s health, the employee would not have answered such enquiries (truthfully) anyway?

No, says the EAT in A Limited -v- Z, available here.

Facts:   Z, the employee, (anonymous because of the sensitive nature of her disability), was employed by A Ltd, a small (15 employees) organisation.  Z was a part-time finance co-ordinator, but was dismissed after 14 months, having had 85 days of unscheduled absence of which 52 were recorded as sick leave. Her sickness absences were attributed to various physical ailments, when in fact they were due to her mental health conditions. Z had not disclosed her various mental and psychiatric impairments, namely stress, depression, low mood and schizophrenia, to her employer at the outset of her employment.

Following her dismissal, Z brought a Tribunal claim for disability discrimination. It was accepted at the outset that she was disabled in view of her medical history, but her employer defended the claim on the basis that it did not know, and could not reasonably have been expected to know, that Z had a disability.

The Tribunal upheld Z’s claim.  The Tribunal found that although A Ltd did not know that Z suffered from any mental illness or impairment, it had constructive knowledge of her disability. GP certificates and a hospital certificate submitted prior to her dismissal evidenced a significant deterioration in Z’s mental state and the Tribunal held that A Ltd should have enquired into her mental wellbeing.  It further held that A Ltd could not objectively justify the decision to terminate Z’s employment.

A Ltd appealed to the EAT.

The EAT upheld the A Ltd’s appeal on the grounds that it could not reasonably have known of Z’s disability. The EAT held that although A Ltd could have reasonably been expected to do more to find out about Z’s state of health, it could not reasonably have been expected to know of Z’s disability. This was because the Tribunal had found on the facts that even if A Ltd had enquired further about Z’s mental wellbeing, Z would have continued to suppress information about her mental health problems and would have resisted any Occupational Health referral or other medical examination.

The EAT also helpfully set out the agreed legal principles where knowledge of disability is concerned:

  • there needs only be actual or constructive knowledge of the disability itself; not the causal link between the disability and its consequent effects which led to the unfavourable treatment;
  • an employer must be able to show that it was unreasonable for it to be expected to know that a person suffered an impairment to his physical or mental health, or that that impairment had a substantial and long- term effect;
  • the question of reasonableness is one of fact and evaluation, but such assessments must be adequately and coherently reasoned and must take into account all relevant factors (but not those which are irrelevant).
  • when assessing the question of constructive knowledge, the information provided by the employee about the cause of absence or disability-related symptoms can be of importance because:
    • in asking whether the employee has suffered substantial adverse effect, a reaction to life events may fall short of the definition of disability, and
    • without knowing the likely cause of a given impairment, it becomes much more difficult to know whether it may well last for more than twelve months.
  • employers should consider the Employment Statutory Code of Practice, specifically paragraphs 5.14 and 5.15.
  • ‘Reasonableness’ in these circumstances is assessed by balancing between the constraints of making enquiries, the likelihood of such enquiries yielding results, and the dignity and privacy of the employee.
  • an employer does not have to make every enquiry where there is little or no basis for doing so.

Implications:   It is important to note that the EAT (and the Tribunal) both agreed that the employer should have made further enquiries of its employee’s health and the cause of her absence.

In this case it was lucky for the employer that the Tribunal had found that any such further enquiries would not have elicited any further information about this particular individual’s mental health issues. The employer was saved by the extreme lengths its employee went to in order to conceal her mental health condition.  However, this is likely to be a relatively rare outcome in practice, and employers should be alert to the need to make further enquiries about an individual’s mental health if there is any suggestion that it might be compromised.