Part 5 of the Equality Act 2010 protects employees against disability discrimination, harassment and victimisation and further places upon an employer a duty to make reasonable adjustments for those who are placed at a substantial disadvantage because of their disabilities.
Disability discrimination issues can be notoriously difficult to navigate and no employer wants to be on the receiving end of an Employment Tribunal claim in that respect. However, an employer cannot be liable for discrimination arising from disability unless it knew (or should have known) about that disability.
A Ltd v Z
The Claimant in this case (who the parties agreed by the time of the hearing was disabled as a result of mental and psychiatric impairments, including depression and schizophrenia), was dismissed by the Respondent for what they referred to as poor attendance and timekeeping issues. Her poor attendance was later found to have been something that arose in consequence of her disabilities. The Claimant had not disclosed her mental health issues to A Ltd and misled the Respondent about the reason for her absences.
The Employment Tribunal (ET) found that the Respondent did not have actual knowledge of disability (in that the Claimant had not expressly told them detail of her conditions), but did have ‘constructive’ knowledge, and the Claimant succeeded. The ET accepted that A Ltd did know that the Claimant had faced a number of difficult personal and family circumstances, and that she had experienced stress and distress on occasions as a consequence. The Respondent said it knew nothing more than that the Claimant had experienced personal problems and suffered stress as a result. However, the ET found that it should have made further enquiries of the Claimant given the clues available to it and fixed the Respondent with constructive knowledge.
A Ltd appealed the outcome and argued that if reasonable enquiries would not have led them to know of Ms Z’s disability, it was unreasonable to expect them to have that knowledge and that therefore constructive knowledge was not made out.
The EAT agreed that the ET was in error in that it had only asked itself what process the Respondent might have been expected to follow, but failed to then address the crucial question of what the Respondent ought to have known. Based on the ET’s conclusion that if further enquiries had been made the Claimant would have continued to conceal her mental health problems and refused an occupational health referral, it surely followed that further enquiries would in fact have made no difference and the Respondent did not have constructive knowledge accordingly. The appeal succeeded.
Comment
The A Ltd v Z case is an employer-friendly case but should not be mistaken for a ‘get out of jail free’ card or confirmation that ‘what you don’t know can’t hurt you’. Whether and when an employer acquires knowledge of an employee’s disability is always going to be fact-specific and employers are advised not to ignore red flags or clues that someone might be suffering from a disability.
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