What amounts to constructive knowledge of disability

Summary

The Employment Appeal Tribunal (EAT) has rejected an appeal from the Employee against a decision of the Employment Tribunal (ET) not to uphold the Employee’s complaint under the Equality Act for discrimination regarding the Employee’s alleged disability. The EAT argued that the Claimant had not fulfilled the evidential burden of proving that his condition had impacted on normal day to day activities in relation to his duties at work. Francis Mutombo-Mpania v Angard Staffing Solutions Ltd: UKEATS/0002/18/JW

Facts

The Employee was engaged by the Respondent, Angard Staffing Solutions Ltd, to work for The Royal Mail on assignments. The Employee had not declared his condition (essentially, Hypertension) on either his application form or on the subsequent health questionnaire he had to complete. The Employee worked for several years with no problem, often on late shifts which finished at 10 p.m. The Employee’s medical evidence he produced related to the medication he was taking and the symptoms he suffered but no mention was made of how this impacted on his ability to carry out normal day to day activities, except in specifically relation to the events that led to his claim of disability discrimination. In that respect, the Employee advised the Respondent in November 2016 that his health condition did not allow him to do regular night shifts.

In November 2016, Royal Mail advised the Respondent of a change in their requirements which meant more night shift staff were required. The employee was offered, and accepted, a booking to work on the night shift (10 p.m. – 6.00 a.m.) between 21 November 2016 and 13 January 2017. On 16th November the employee emailed the Respondent stating his health condition meant that he could not work regular night shifts. The employee asked that his name be taken off the night shift and moved back to the late shift (finishing at 10.00 p.m.), and further queried his shifts. He was absent on 4 occasions between 21st November and 15th December, which he did not inform the Respondent about. Royal Mail then advised they no longer wished him to continue working on their assignments.

Outcome

The Employee submitted claims to the ET for disability discrimination contrary to the Equality Act 2010, claiming that night shifts were normal day to day activities, and that he had explained that he did not wish to work a regular night shift but made no real link between his hypertension condition and why it meant that he could not work night shifts. The ET held that the Employee had not established that his condition had a substantial effect on his ability to carry out day to day activities. It was accepted the Employee had a long term condition.

The EAT agreed with the ET in that the Employee had not fulfilled the evidential burden of proving that his condition impacted on normal day to day activities. In reaching its decision, the EAT referred to a previous case in which it had previously been determined that a night shift amounted to a normal day to day activity. In that case, the Employee suffered from particular mobility problems between the hours of 2.00a.m. and 4.00a.m. and that when on night shift, he was expected to be carrying out ‘normal’ activities such as dressing, walking upstairs, driving and undressing, all of which were impacted by his particular condition (MS). In contrast, in the current case, the Employee did not bring any evidence to show which particular activities were difficult for him on the night shift as a result of his condition.

Implications for Employers

This decision is good news for employers is that the EAT held it is very much for the employee to prove that the disability in question has a ‘substantial long term and adverse impact’ on his or her ability to carry out day to day activities. The Employer’s position in this case was however strengthened further with the Employee acting as a litigant in person. Perhaps this case would not have reached the EAT had the Employee engaged a legal representative.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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