19 Aug 2019
The Employment Appeal Tribunal (EAT) has ruled that an employer didn’t have ‘constructive knowledge’ that an employee was disabled.
Because she’d concealed her disability from them and would likely have continued to do so even if they’d looked into her health further.
A Ltd v Z
Within equality law, it’s unlawful to treat a disabled person unfavourably because of something arising from, or in consequence of, their disability.
For example, reprimanding an employee who had to take long periods of time away from work because of a disability would likely be discrimination.
For this type of discrimination to occur, the employer must know—or be reasonably expected to know—about the disability.
It isn’t always that clear-cut, however.
Employers may be able to justify this treatment if they can show it to be a proportionate means of achieving a legitimate aim.
It could potentially be justifiable to dismiss an employee on the grounds of capability.
It would have to be clearly demonstrated that they were unable to do the job they were employed to do as a result of their disability—even with additional support.
Background to the case
An employee suffered from a number of mental health impairments yet failed to disclose this to her employer at the beginning of her role.
This was despite the fact the employer directly asked her why she’d taken 30 days sick leave from her previous job.
Before starting her new role, the employee also completed a form that confirmed she wasn’t aware of any impairment that would have an effect on her ability to carry out normal day-to-day activities.
During her employment, the employee was absent for 52 days due to sickness, which she failed to disclose were a result of a mental impairment.
Her employer did receive certificates from her GP, and a hospital, indicating she had issues with her mental health, but failed to follow up on this.
The employee was eventually dismissed as her continued absences and poor time keeping meant she couldn’t be relied upon in her role.
She later brought a claim to the employment tribunal (ET) for discrimination arising from a disability.
What did the tribunal say?
The tribunal initially upheld her claim.
They found the employer had ‘constructive knowledge’ of her disability as they’d been sent medical evidence that raised real questions about her mental health, but failed to follow up on it.
They also held that whilst her employer did have a legitimate aim for dismissing her, namely that her unreliability could have caused issues for the company, their actions weren’t proportionate.
This was because her employer had dismissed her on the spot instead of considering any additional support they could have given her, such as referring her to Occupational Health (OH).
What did the Employment Appeal Tribunal (EAT) say?
The employer appealed this decision to the EAT, who upheld their appeal.
They outlined that the tribunal only considered what the employer should reasonably have done, when it should’ve focused on what the employer could reasonably have been expected to know.
As the employee had continuously concealed her impairment from the employer, there was no confirmation that she wouldn’t have continued to do so even if further enquiries had been made.
The EAT held that, when assessing whether an employer had ‘constructive knowledge’ of a disability, employers must be able to show that it was unreasonable for them to be expected to know about it.
It was a win for the employer in this situation.
That said, you must always proceed with care when faced with an employee who is taking prolonged periods of sick leave and could, potentially, be disabled.
Here are the main points to consider:
- In situations where an employee’s conduct suggests they have an underlying health issue you aren’t aware of, be prepared to make further enquiries before making any decisions about their continued employment.
- There could be a number of reasons why the employee hasn’t previously disclosed this to you and you should be prepared for this.
- Mental health can cause a significant number of issues in a company and managers must always be fully trained in the best methods of response.
- To this end, you must ensure that your company is not maintaining any outdated stigmas towards mental health.
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