Summary

When assessing whether or not an employer knew, or ought to have known, that an employee is disabled, the tribunal should ask itself whether the employer was put on notice by the employee’s behaviour of the need to make enquiry as to the possible effects of a more general mental impairment which has a substantial and long-term adverse effect which impacts their ability to carry out normal day-to-day duties, and not a specific disability.

The Law

The definition of disability is found in s.6 of the Equality Act 2010 (EqA), which sets out that a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Section 15(2) of the EqA provides that it will be an act of discrimination if a respondent treats a disabled person unfavourably because of something arising in consequence of that person’s disability and the respondent cannot show the treatment to be a proportionate means of achieving a legitimate aim. It also provides that the protection will not apply if the respondent didn’t know, and could not reasonably have been expected to know, that the claimant had the disability.

For there to have been direct disability discrimination, the respondent must have treated the claimant less favourably because of their disability. Implicitly therefore, the law requires the respondent to know that the person has a disability, although that need only be knowledge, whether actual or constructive, of the facts that make the person a disabled person under the EqA. Specifically, they need to know that:

1. the person has a physical or mental impairment

2. the impairment has a substantial and long-term adverse effect on them

3. the effect impacts their ability to carry out normal day-to-day duties.

A Ltd v Z [2020] (EAT)

When deciding if an employer had constructive knowledge of a person’s disability, the tribunal should apply a test of reasonableness and ask itself if the respondent could have been expected to know, not necessarily of the actual diagnosis, but of the facts that would demonstrate that the person had a disability fitting the definition in the EqA.

The Facts

The claimant had left their employment with the respondent some years prior to the facts of this case, which occurred around the time they were diagnosed as being on the autism spectrum. At and around that time, the claimant began applying for various roles advertised by the respondent, but they were not appointed to any of those roles. The claimant argued that this was because of their need for “quiet and space” and the fact that they “would not engage in conversation or social interactions in the same way as others”. These reasons, the claimant argued, were because of their disability.

Claims were brought of direct disability discrimination and discrimination arising from disability, on that basis that the respondent should have been fully aware of their disability because of their previous employment, despite their employment ending well before their diagnosis.

Decision: Employment Tribunal (ET)

Having established that the impact of the claimant’s autism fell within the definition of disability in the EqA, the ET had to determine if the respondent knew, or ought to have known, that the claimant was in fact disabled. The claimant alleged that it should have, as those who sat near to them during their employment would have been fully aware of their communication and social interaction problems. However, the ET made it clear that it was for the respondent in this matter to show that it did not have the requisite knowledge.

Upon review of the evidence, the ET concluded that there was no evidence that the respondent was aware of the claimant’s disability. There were witness reports of the claimant being called “odd” and “strange”, but no evidence that the claimant’s interpersonal skills were other than what the respondent was expecting. It was also alleged that the claimant’s manager during their employment called them “sensitive”, but again there was nothing to suggest that this was considered to be consistent with an autism diagnosis.

Based on the above, the ET held that without in-depth training in autistic spectrum disorders, it would be unreasonable to expect any employer to reach the conclusion that the claimant’s behaviour was on the autism spectrum. That, and the fact that the claimant would have been resistant to an assessment that might reveal this diagnosis, meant that the respondent could not reasonably be said to have known, or ought to have known, that the claimant was disabled.

As a result, the claims failed.

Decision: Employment Appeal Tribunal (EAT)

On appeal, the EAT found that there was limited evidence of any behaviours that would have alerted the respondent to the claimant having a disability during their earlier employment. However, it was critical of the test applied by the ET to determine this. Instead, the EAT held that the proper test to apply when assessing constructive knowledge was that the respondent needs to show that it did not know (and could not reasonably have been expected to know) that the claimant (i) had a physical or mental impairment, and (ii) that it had a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Instead of applying the test, and despite acknowledging it in its judgment, the ET had, after a thorough examination of the evidence before it, approached this question in a different way. It asked itself whether the respondent might reasonably have been put on notice of the need to make further investigation into whether the claimant was living with an autistic spectrum disorder, a higher test to set than whether it might reasonably have been aware of the need to make enquiry as to the possible effects of a more general mental impairment. To that extent the decision was unsafe. However, as the ET had gone on to consider what would have happened had the respondent made such further enquiry and concluded that this would have been declined by the claimant, the ET’s findings that the respondent had demonstrated that it had neither actual nor constructive knowledge of the relevant facts of the claimant’s disability were upheld.

Based on the above, the EAT dismissed the appeal.

Takeaway Points

This case serves as a reminder of an employer’s obligations when it comes to possible disabilities, and the fact that an actual diagnosis of a specific disability is not needed for the protections under the EqA to apply. Instead, if it is reasonably apparent that the employee has an impairment, and that impairment has a substantial and adverse effect on their ability to carry out normal day-to-day duties, then the individual should be treated as though they are disabled, rather than first requiring them to obtain a formal diagnosis. Failing to do this could mean that the employee is treated less favourably because of their impairment, or reasonable adjustments are denied where they are legally owed.

To avoid this risk, and to get the best from all employees, employers should consider discussing the possibility of adjustments with the employee as soon as the impairment with the above effect is identified. This can be alongside seeking medical advice as to their condition and possible adaptations but should not be delayed until that advice is received.