Employment and Immigration Law Update – Constructive knowledge of disability

The Employment Appeal Tribunal (EAT) has considered whether an employment tribunal was correct to conclude that an employer had constructive knowledge of an employee’s disability.

A Ltd v Z, UKEAT/0273/18

Facts

Z was employed as a part-time finance co-ordinator for a small organisation with only 15 permanent employees. She was dismissed after 14 months, having had 85 days of unscheduled absence of which 52 were recorded as sick leave. Her sickness absences were attributed to various physical ailments, when in fact they were due to her mental health conditions. She had not disclosed her various mental and psychiatric impairments, namely stress, depression, low mood and schizophrenia, to her employer at the outset of her employment.

Following her dismissal, Z brought a claim for discrimination arising from disability. It was accepted at the outset that she was disabled in view of her medical history, but her employer defended the claim on the basis that it did not know, and could not reasonably have been expected to know, that Z had a disability.

The employment tribunal upheld the claim, finding that although A Ltd did not know that Z suffered from any mental illness or impairment, it had constructive knowledge of her disability. GP certificates and a hospital certificate submitted prior to her dismissal evidenced a significant deterioration in Z’s mental state and the tribunal held that it was therefore incumbent on A Ltd to enquire into her mental wellbeing. It further held that the employer could not objectively justify the decision to terminate Z’s employment. A Ltd appealed against this decision to the EAT.

EAT decision

The EAT has upheld the employer’s appeal on the grounds that it could not reasonably have known of Z’s disability. The EAT summarised the relevant principles and reviewed the authorities on the issue of constructive knowledge. The tribunal had found that even if  Ltd had enquired further about Z’s mental wellbeing, Z would have continued to suppress information about her mental health problems and would have resisted any occupational health referral or other medical examination. On that basis, the EAT held that although A Ltd could have reasonably been expected to do more to find out about Z’s state of health, it could not reasonably have been expected to know of Z’s disability.

Consequences

This case demonstrates the importance of recent campaigns aimed at removing the stigma of mental health and encouraging openness in the workplace. These campaigns will hopefully discourage employees to go to such lengths as this individual in concealing a history of mental illness. Had she felt able to be more open with her employer, she would have gained protection against disability discrimination. The important point for employers to note is that the tribunal in this case found that the employer was on notice to make further enquires, but any such further enquiries would not have elicited any further information about this particular individual’s mental health issues. This is likely to be a relatively rare outcome in practice, and employers should be alert to the need to make further enquiries about an individual’s mental health if there is any suggestion that it might be compromised.

This article is from the August 2019 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. Law covered as at August 2019.

The content of this article is for general information only. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.