Employers will not be liable for discrimination arising from a disability if they do not know the employee has a disability. Employers may be considered to have constructive knowledge of a disability if they could reasonably have been expected to know about the disability. Employers are expected to do all they reasonably can to find out if a worker has a disability.
Z, an employee of A Ltd, suffered from stress, depression, low mood and schizophrenia. These conditions were mental impairments and classed as disabilities protected by the Equality Act 2010. Z did not disclose her conditions to A Ltd. On several occasions, including at the outset of her employment when she completed a form about her health, which specifically asked about mental impairments, and in relation to a period during which she was hospitalised for psychiatric care, she did not mention any mental health conditions, but referred to various physical ailments.
During her employment, Z had 85 days of unscheduled absence of which 52 were recorded as sick leave. A Ltd decided that Z could no longer be relied upon, given her absences and poor time keeping. She was dismissed and she claimed discrimination arising from disability.
The employment tribunal upheld Z's claim. It found that A Ltd had constructive knowledge of Z's disability because it had received GP certificates and a hospital certificate which evidenced a significant deterioration in her mental state. This, according to the tribunal, meant that there was a real question about her psychiatric health and A Ltd should have enquired into her mental wellbeing. Its failure to do so precluded A Ltd from denying that it ought to have known that Z was disabled. The tribunal held that Z's dismissal was discrimination arising from a disability. It did not consider the dismissal to be objectively justified: the chief executive officer had decided on the spot to dismiss her. This was found to be intemperate and precipitative and anything but a proportionate thing to do. There had been no return to work meeting or enquiry into Z's health or recent problems and no opportunity to consider a referral to OH or a medical expert.
A Ltd appealed to the EAT and the EAT upheld their appeal. The EAT considered that the tribunal had only asked itself what more A Ltd might reasonably have been expected to have done in terms of process. The tribunal should have also asked what A Ltd might then have reasonably been expected to know. The tribunal had made a finding of fact that Z would have continued to suppress information about her mental health problems, that she would have insisted that she was able to work normally, and she would not have agreed to an OH referral or medical examination that might have revealed her psychiatric history. Given this finding of fact, even if A Ltd could reasonably have been expected to do more to find out about Z's health, it could not reasonably have been expected to know about her disability.
WHAT DOES THIS MEAN FOR EMPLOYERS?
Workers may be reluctant to disclose information about mental health conditions due to concerns regarding stigma and prejudice they may face if they do so. Employers therefore have an obligation to proactively consider whether a worker has a disability, even where one has not been formally disclosed, particularly where there is a pattern of absence which suggests there could be an underlying health condition. Here the employee's suppression of mental health issues and her insistence she was able to work normally meant the employer had done all it could and did not have constructive knowledge of the disability. This will always be fact specific.
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