The importance of constructive knowledge for disability discrimination

In the case of A Ltd v Z, the Employment Appeal Tribunal (EAT) were tasked with determining whether an employer had constructive knowledge of an employee’s disability and therefore could be held responsible for discrimination arising as a result of a disability under section 15 of the Equality Act 2010.

The employee in this case suffered from a number of mental health impairments including depression and schizophrenia, which affected her attendance at her previous job. Prior to commencing employment with A Ltd as a part-time finance co-ordinator, the employee was asked to explain why she had taken over 30 days in sick leave from her previous job. However, she attributed this to complications arising from a car accident and made no mention or her mental health issues. The employee also completed a form as part of her pre-employment procedure that confirmed she was not aware of any disability that she possessed which may require adjustments.

During the course of her employment with A Ltd the employee was absent for a total of 52 days due to sickness and failed to disclose that these were a result of her mental impairments. She also took an additional extended period away from work due to ‘low mood’ and was hospitalised for psychiatric care for two weeks during this time. Although A Ltd received certificates from her GP and the hospital indicating the employee had issues with her mental health, the full details of this were never disclosed.

Upon returning to work, the employee was informed that she was to be dismissed on account of her continued absences and poor time keeping, which left A Ltd unable to rely on her to perform the role effectively. In response, the employee brought a claim to the employment tribunal (ET) for discrimination arising from a disability.  

The initial ET upheld this claim, finding that although the employer had not been aware that the employee was suffering from any mental illness, they did have constructive knowledge of her disability. Key to this was the fact that A Ltd should have conducted further enquires upon receipt of the medical certificates that they had received, which they had failed to do. The ET also held that the decision to dismiss was not a proportionate means of achieving a legitimate aim, as they had dismissed the employee on the spot without considering any support they could have provided her.

However, when this decision was appealed to the EAT it was ruled that, on the findings of the facts that were presented, A Ltd did not have constructive knowledge of the disability and therefore could not be held accountable for disability discrimination. The EAT explained that the employee had continually concealed her impairment from the employer, there was no confirmation that she wouldn’t have continued to so regardless of any additional enquiries into her health.

This case presents a useful commentary into how far an employer needs to go to prove it could not have reasonably been expected to know about any impairment. Therefore, it is important to be proactive in situations where employees are displaying clear warning signs of poor mental health, such as a sudden change in mood or prolonged periods of sick leave, as in future situations it may not always be possible to rely on a lack of constructive knowledge.

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