Over two-fifths (43%) of businesses have had employees absent from work for more than four weeks...
Constructive knowledge where employee hides disability
A Ltd v Z
An employer did not have constructive knowledge of an employee’s disability where the employee hid her disability and would have continued to hide it on further inquiry.
Section 15 of the Equality Act 2010 (discrimination arising from disability) states that someone discriminates against a disabled person if it treats that person unfavourably because of something arising from their disability and it cannot show that the treatment is a proportionate means of achieving a legitimate aim. This will not be so if the alleged discriminator shows that it did not know, or could not reasonably have been expected to know, that the person was disabled.
Ms Z had worked for A Ltd, a small employer, as a finance controller for just over a year during which time she had 85 days of unscheduled absence, 52 of which were sick leave. Before being recruited she explained her poor sickness record with a previous employer as being down to various physical problems, including minor surgeries. She had in fact a long history of mental health issues, none of which were disclosed to A Ltd, either before starting work with them or during her employment with them. Her poor attendance record continued. No longer feeling able to put up with her poor timekeeping and attendance, A Ltd dismissed her. She brought a disability discrimination claim under s. 15 of the Equality Act.
At the tribunal Ms Z produced psychiatric reports detailing her struggles with stress, depression, low mood and schizophrenia leading to serious overdoses and self-harm, regular cannabis abuse, a period of in-patient psychiatric care and a diagnosis of emotionally unstable personality disorder and paranoid schizophrenia.
The tribunal accepted that A Ltd did know she had faced a number of difficult personal and family circumstances, and that she had experienced stress and distress on occasions as a consequence. It concluded that ‘the weight of the evidence known to [A Ltd] pointed to these symptoms being unremarkable and unsurprising reactions to problems in her life’. Whilst A Ltd had no actual knowledge of Ms Z’s disability, the tribunal held that it should have made more enquiries given the clues available to it – and thus it had constructive knowledge for the purposes of the Act. While A Ltd had a legitimate aim (a dependable person in post), given the intemperate and precipitate nature of the decision-making process, it could not show that its dismissal of Ms Z was a proportionate means of achieving that aim. When considering remedy, the tribunal held that even if A Ltd had made further enquiries, Ms Z would have continued to hide her mental health issues and refused to engage with any medical investigatory process. That being so, it reduced her compensation accordingly. A Ltd appealed.
The appeal was allowed.
A Ltd 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. The mistake the tribunal had made was to only ask what process A Ltd should have been expected to follow. The test under s. 15 looks at what it would have been reasonable for the employer to have known – not what it would have been reasonable for the employer to have done. Based on the tribunal’s finding that if further enquiries had been made, Ms Z would have continued to hide her mental health issues and refused a referral to occupational health, it followed that further enquiries would have made no difference. Therefore, A Ltd did not have constructive knowledge.
The EAT 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 (see City of York Council v Grosset).
- An employer need not have constructive knowledge of the complainant's diagnosis but rather must be able to show that it was unreasonable for it to be expected to know that a person suffered an impediment to his physical or mental health, or that that impairment had a substantial and long- term effect (see Donelian v Liberata UK Ltd).
- 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 and not take into account those that are irrelevant.
- When assessing the question of constructive knowledge, an employee’s representations as to 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 12 months.
- When assessing whether an employer has constructive knowledge, the provisions of the Employment Statutory Code of Practice are relevant, specifically para. 5.14 and 5.15.
- An employer does not have to make every enquiry where there is little or no basis for doing so.
- ‘Reasonableness’ for the purposes of s. 15 entails a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0273_18_2803.html
Whether and when an employer acquires knowledge of an employee’s disability is always going to be fact-specific – as this case demonstrates. Another recent case on this topic shows that an employer can acquire knowledge during an appeal process – see Baldeh v Churches Housing Association.