Businesses frequently encounter difficulties in knowing when their employees are covered by the disability provisions in the Equality Act 2010. In some cases, it’s obvious. However, where the employee is suffering from a progressive or varied condition or just does not want to talk to the employer about their health, it can be difficult for them to know if the employee is disabled.
Employers can only be found to discriminate against an employee (or a potential employee) because of their disability where they know or ought reasonably to have known that the individual has a disability. This is known as ‘constructive knowledge’. The statutory code of practice that accompanies the Equality Act provides that “an employer must do all that they can reasonably be expected to do to find out if the individual has a disability”.
In the recent case of A Ltd v Z, the Employment Appeal Tribunal (EAT) overturned the tribunal’s finding that A had constructive knowledge of Z’s disability and gave a useful summary of the relevant principles to be taken into account when determining the question of knowledge.
Mrs Z had suffered from mental and psychiatric impairments for a number of years, including stress, depression, low mood and schizophrenia. She did not disclose these to A at the outset of her employment. When asked about her absence in her previous role she said this was because of injuries following a car accident and stated in her medical questionnaire that she did not have a disability or any mental or physical impairment.
During her employment with A, Z was absent on 85 days, of which 52 were recorded as sickness absence. The reasons given were physical ailments and not the mental health conditions that were in fact the real reason for her absence. Subsequently, Z was absent for a further period, during which she was signed off with low mood and admitted to A that she was feeling incredibly depressed (although she said the reason for this was difficulties with her son). However, she did not disclose that she had been hospitalised for more than two weeks. Following this absence Z was dismissed because of her attendance record.
She claimed disability discrimination and the employment tribunal found that A had constructive knowledge of the disability because of the fit notes and the hospital certificate citing a deterioration in her mental health. The employment tribunal considered that it was incumbent on A to make enquiries about her mental health. Its failure to do so prevented A from arguing that it could not reasonably have known that Z was disabled.
The EAT overturned the decision. The correct test was what A might reasonably have been expected to know not what it might reasonably have been expected to do. The fact that Z continued to suppress information about her mental health and admitted to the tribunal that she would have insisted she could work normally and would not have entertained an occupational health referral, meant that A could not have been expected to know that she was disabled. Put simply, even if asked, she would have continued to hide her condition from A.
While employers cannot avoid their obligations by simply ‘turning a blind eye’ and ignoring the evidence before them, it does give comfort that where an employee is concealing the reasons for their absence and the true nature of their health condition employers cannot reasonably be expected to know about any disability and the employee will lose the protection of the Equality Act.
Claire Hollins is principal associate in the employment, pensions and immigration team at Weightmans