UK: What Evidence Must A Claimant Bring To Establish Disability And When Will An Employer Have Constructive Knowledge Of Disability?

Last Updated: 10 October 2018
Article by Wrigleys Solicitors

In Mutombo-Mpania v Angard Staffing Solutions Ltd, the EAT upheld the preliminary decisions of an employment tribunal that the claimant had not done enough to prove disability because he had brought no evidence about the impact of his condition on day to day activities; and that the employer did not know and could not reasonably be expected to know about any disability.

Mr Mutombo-Mpania worked as a flexible resourcing employee of Angard Staffing Solutions (Angard) and was supplied on a casual basis to work for Royal Mail Group. If Angard offered work, Mr Mutombo-Mpania could choose to accept it or turn it down. He had been diagnosed in 2011 with essential hypertension, a condition which entails permanently high blood pressure and leads to a lack of energy, headaches and dizziness. It requires daily medication to prevent the greater risk of a heart attack. On his application form for the role, Mr Mutombo-Mpania indicated that he did not consider that he had a disability. On a subsequent health questionnaire, he did not take the opportunity to give any details of his condition.

The claimant worked mainly late shifts for the Royal Mail for around a year. These finished at 10pm. He was then informed that he was required to move to night shifts in the run up to Christmas 2016. He was offered and accepted a series of night shifts. The claimant then informed Angard that he had a "health condition" which did not allow him to work regular night shifts. He did not provide any further detail of this condition. Angard agreed to move him back on to late shifts for a week but thereafter he was expected to attend for the Christmas night shifts he had previously accepted. He failed to attend work on four occasions in November and December 2016 and was dismissed.

He brought a number of claims to an employment tribunal including disability discrimination claims. At a preliminary hearing, the employment tribunal considered whether the claimant's condition met the definition of disability in the Equality Act 2010 as being a mental or physical impairment which has a substantial and long term adverse effect on the claimant's ability to carry out normal day to day activities. The tribunal found that Mr Mutombo-Mpania was not disabled for the purposes of the Equality Act 2010. Angard conceded that the claimant had an impairment which was long term. However, the tribunal found that the claimant had failed to bring any evidence that this impairment had a substantial adverse impact on his ability to carry out normal day to day activities. Indeed, his evidence made no reference whatsoever to his day to day activities. As the burden of proof is on the claimant in establishing disability, this led to a finding that the claimant was not disabled.

The tribunal went on to find that Angard had no actual knowledge of any disability. The tribunal took into account that the claimant had not taken the opportunity when applying for the role to state that he had a disability or to give any details of his condition. It also noted that the claimant had worked for Angard for a year on late shifts with no apparent issues.

The tribunal also found that Angard did not have constructive knowledge of any disability. That is, on the basis of the facts known to the employer, there was no reason to suggest that Angard ought to have known about any disability. The tribunal found that Angard was put on notice to find out more about his condition by the claimant's reference to his "health condition" and non-attendance for work. However, these facts were not enough to find that Angard had constructive knowledge of any disability. In this, the tribunal took into account that the claimant had actually worked some night shifts and had accepted the offer of a series of night shifts in the run up to Christmas.

The EAT agreed. It made clear that a health condition is not necessarily the same as a disability for the purposes of a discrimination claim. It held that the tribunal was entitled to find that the employer was on notice to seek more information but that this was not the same as having constructive knowledge of disability.

Employers should be aware that some disability discrimination claims can be made out even where the employer had no actual knowledge of the disability. Where there is evidence to suggest to the employer that a worker has a mental or physical impairment (for example from sickness absence, the worker's conduct or performance or from information disclosed by the worker), the employer should take reasonable steps to find out about the condition and whether it may qualify as a disability.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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