The EAT held, on the specific facts of the case, the Respondent had constructive knowledge of disability where the employee in question had not been forthcoming about her disability.
The Claimant was employed from February 2016 on a part-time basis by the Respondent, an organisation bringing together contractors and trade associates in the construction industry. She was dismissed in April 2017 because of poor attendance and time keeping.
It was accepted that the Claimant was disabled for the purposes of the Equality Act 2010, by reason of the fact she suffered from mental and psychiatric impairments including stress, low mood, depression and schizophrenia. She did not disclosed these conditions to her employer, despite suffering from these impairments from 2008, and made different excuses for her absences from work.
It was noted that the poor attendance was down to her disability, but the time keeping issues were not. The Claimant subsequently brought a claim in the Employment Tribunal (ET) for unlawful disability discrimination.
The Respondent argued that it had a legitimate aim in acting in this way, namely to have a dependable person in this post, but the ET concluded that the decision-making process in dismissing the Claimant did not show that this was a reasonably necessary means of achieving this aim. The ET found that while the Respondent did not have actual knowledge of the Claimant’s disability, it should have made more enquiries into the Claimant’s circumstances and therefore had constructive knowledge of the disability for the purposes of Equality legislation. The Claimant’s claim was upheld and the Respondent appealed.
The Employment Appeal Tribunal (EAT) partially upheld this appeal.
In relation to the constructive knowledge of the Respondent, it was noted that the ET had focussed on what further steps the Respondent could have taken to make enquiries about the Claimant’s disability, but had not considered whether the Respondent could then have reasonably been expected to know of the Claimant’s disability. On the specific facts of this case, it was identified that had further enquiries been made, the Claimant would have continued to hide her disability from her employer such that the Respondent could not have known or reasonably be expected to know of the Claimant’s disability. This aspect of the appeal was therefore upheld.
While it was not necessary as part of the appeal to determine whether the decision to summarily dismiss (i.e. the unfavourable treatment) the Claimant was justified, the EAT noted that the ET should also have considered the business needs of the employer when determining. Had it been necessary to decide, the EAT would also have allowed this element of the appeal.
- Implication for Employers
While this judgement is very case specific, it highlights the importance of making all enquiries possible in circumstances where an employee indicates health concerns, ailments or issues that could be indicative of a disability, even if the employee in question continues to hide the disability. An employer can be deemed to have “constructive” knowledge of a disability even when the employee has not told you about the disability, if there are clear signs that would lead a reasonable employer to enquire further. This can be especially important in cases of mental health concerns.