For most disability discrimination claims, an employee must show that the employer was aware of their disability.
If an employer is dealing with an employee who withholds information about their medical condition, you would be forgiven for thinking that the employer could not then have the necessary knowledge of their disability. However, employers can also be liable for discrimination where it is found that they ought reasonably to have known of an employee’s disability (also referred to as ‘constructive knowledge’).
An important issue for employment tribunals is often what knowledge the employer would have had if it had tried to find out more about the employee’s medical condition. The recent case of A Limited v Z considered this question in circumstances where the employee had been suppressing information about her condition.
Z had a long history of serious mental health issues. However, on commencing her employment with A, Z denied having a disability. After only 14 months in employment, Z had taken 85 unscheduled absences, of which over 50 days were sick leave. Her employer had queried her condition but, each time, Z had given them stories of minor physical ailments, instead of admitting to her mental health issues. Z was ultimately dismissed for her attendance record and general unreliability. Z brought a claim under section 15 of the Equality Act 2010 for discrimination for something arising out of a disability.
Her discrimination claim was successful in the Employment Tribunal (ET). The ET found that whilst the employer had not had actual knowledge of Z’s disability when it dismissed her, it ought reasonably to have known about her disability by this date. The ET felt it was normal for people with poor mental health to be somewhat withdrawn about their conditions. Given that A was quite a sophisticated organisation, it should have made further enquiries of the employee.
On appeal to the Employment Appeal Tribunal (EAT), this decision was overturned. The ET had failed to consider what the employer would have discovered had it asked further questions about Z’s mental well-being. As the ET had admitted, Z was unlikely to have answered such questions truthfully and, therefore, it was incorrect to conclude that A should reasonably have known about her disability. The EAT referred to the EHRC Code of Practice, which requires employers to contemplate the dignity and privacy of the employee when making enquiries; it commented that it was not reasonable to ask employers to make medical enquiries where they would be “imposing themselves” upon reluctant employees who wish to keep their condition private.
Whether an employer ought reasonably to have known about a disability is a very fact-specific question and no two cases will be the same. Employers should not conclude from this case that an employee’s reticence is the end of the matter. Rather, where an employee may be suffering from a qualifying disability, employers should investigate further by speaking to the employee, contacting their GP or by referring them to Occupational Health. However, where an employee does not then co-operate with such enquiries, this case suggests it may be that their employer could not reasonably have been expected to know about their disability.