Disability and employer’s knowledge


26 August 2021

In this case, the Employment Appeal Tribunal (EAT) considered the question of whether an individual was disabled, and whether their employer had either actual or constructive knowledge of the disability.

Seccombe v Reed in Partnership Ltd, EA-2019-478-OO

Facts

The claimant, a supply chain manager, was dismissed on grounds of poor performance after less than two years of service. He brought a claim on the basis that his dismissal constituted disability discrimination and/or that the respondent had failed in its duty to make reasonable adjustments. He claimed that he was disabled by reason of his anxiety and depression.

Prior to the claimant’s employment with the respondent, his medical records showed two periods of ill health related to anxiety and depression, both of which the respondent was unaware. The claimant did not disclose any health-related issues or impairments on an equal opportunities questionnaire that he completed on the commencement of his employment. During his period of employment with the respondent, he experienced a traumatic event following which he had a period of sickness absence lasting several weeks.  After his return to work, he was dismissed following a performance review meeting.

The employment tribunal concluded that the claimant was not suffering from a substantial and long-term mental impairment during the period of his employment and was not therefore disabled at the relevant time. In the alternative, it decided that even if the claimant was disabled, the respondent did not know and could not reasonably have been expected to know that he was disabled.

The claimant appealed to the EAT.

EAT decision

The EAT has dismissed the claimant’s appeal, upholding the tribunal’s decision that he was not disabled for the purposes of the Equality Act 2010. In reaching its decision, the EAT reviewed existing case law on the definition of disability under the Act, and on the question of the employer’s knowledge of a disability.

The claimant had failed to demonstrate that his mental impairment was both substantial and long term, and the tribunal had been entitled to conclude that the employer did not know of any disability. The respondent was unaware of the claimant’s previous occurrences of mental ill health. Following the incident that had occurred during his employment, the claimant had taken a relatively brief period of absence and had been signed back to work, apparently recovered. Whilst the tribunal had accepted that this absence resulted from an impairment with a substantial adverse effect on his ability to undertake day-to-day activities, the respondent did not know and could not reasonably have been expected to know that any effects of the impairment were long term. In addition, during the performance review meeting held prior to his dismissal, the claimant had not asserted that he had any impairment.

Consequences

In this decision, the EAT has emphasised that the ‘long term’ element of the statutory definition of a disability under the Equality Act 2010 relates to the effect of the impairment rather than the impairment itself, and must be judged at the time of the alleged discrimination. Similarly, the statutory definition must be met at the time of the alleged discrimination; anything occurring after that time will not be relevant to an assessment of the likelihood of an effect lasting for 12 months or more.

The claimant in this case had tried to argue that in assessing whether he was disabled, the tribunal should not have taken into account the fact that he had not informed his colleagues of his impairment. This was on the basis that an individual’s disability is likely to be a sensitive issue. The EAT disagreed, stating that what a person says or does not say about their abilities can be relevant to the question of whether or not they are disabled, particularly in the absence of medical evidence. This is because the claimant is often the best placed to explain the effects of any impairment on day-to-day activities.

This decision provides some comfort to employers that when an employee has made no express reference to their impairment, particularly in the context of a performance review process, they are likely to find it difficult to establish constructive knowledge of a disability.

This article is from the August 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at August 2021.

Author

Liz Stevens

Professional Support Lawyer

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