Secret disabilities

The definition of disability in the Equality Act 2010 is an expansive one. I have frequently found when representing workers who are being disciplined for their attendance records that frequently a worker is themselves ignorant that underlying health conditions they have are protected by the 2010 Act.

However, a similar issue is that when a worker is disabled they are often, for understandable reasons, reticent to disclose to their employer that they are disabled, this is especially relevant when the disability relates to a worker’s mental health. Aside from the natural privacy motivations for such a course of action most representatives will have experience of a worker disclosing disability only to then complain that their  managers  have begun treating them poorly after doing so.

When a worker makes a complaint of discrimination arising from disability (section 15 of the Equality Act 2010) one of the issues that must be demonstrated (because it will be a defence for the employer under section 15(2) of the Act) is that the employer knew about the claimant’s disability. The easiest way to do this is of course for the worker to disclose this to the employer, preferably in writing. For the reasons above an worker is often reticent to do this.

The fact that an employer has not been explicitly told a worker has a disability does not mean an employer does not have knowledge of it, however. In some case an employer will have what is called constructive knowledge of disability and if they do then they will have no defence to a section 15 claim on the basis of lack of knowledge.

The EHRC Code of Employment on the Equality Act explains that

5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a ‘disabled person’.

5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.”

What the principle of constructive knowledge means is that an employer cannot (in theory) know an employer may be disabled but intentionally avoid making reasonable inquiries of the employee of other sources of information so that they can maintain a later ignorance defence in the event of any future disability discrimination claims. However, as this post shows the EAT have just added a caveat to that general position.

ignoranceHowever, the question of when an employer can be said to have ‘constructive  knowledge’ of disability is  complex one and one, any worker would normally be best advised to avoid entirely by avoiding any issue of knowledge by informing the employer about the issue so that the issue of constructive knowledge never arises. The question of when an employer has constructive knowledge has recently been examined by the EAT in A Ltd v Z.

The claimant was disabled, at the time of the tribunal hearing this was accepted by all parties. However, at no time had the claimant informed the employer that she considered herself disabled. Whilst at work she had other disability related absences but at no time disclosed the real reasons for these absences. However, the employer did have some evidence that the claimant indicated there may be a disability. The employer had received fit notes describing “low mood”, had evidence from hospital that the claimant was expected to be an in patient for four weeks, and another fit note which referenced the claimant’s “mental health and joint issues”.

Despite knowing these issues the employer made no further inquiries into the claimant’s health and dismissed the claimant from her employment. The claimant alleged that her dismissal, for reasons that were in part connected to her disability, was discriminatory and that the employer had constructive knowledge of her disability. At the employment tribunal the claimant’s argument was accepted, with the Tribunal concluding:

48 For the purposes of our analysis, the key question is whether the Respondents had constructive knowledge on the date of the alleged unlawful act, namely the dismissal on 18 April 2017. We have recorded in our primary findings the recent information in the hands of the Respondents at the time of the dismissal. It included the GP certificates of 13 February and 27 March and the hospital certificate of 1 March. These materials, it seems to us, amounted to clear evidence that, over a period of more than two months up to the dismissal, during the entirety of which she was away from work, the Claimant experienced a significant deterioration in her mental state and there was a real question about her psychiatric health …  The Claimant’s silence on her mental health could not be taken as conclusive. It is notorious that mental health problems

The Tribunal also recognised the factual circumstances and made a decision that even if the employer had made enquiries of the claimant she would still have refused to disclose her disability but the fact that the employer failed to make a reasonable investigation into the possibility that the claimant was disabled was in this case sufficient to amount to constructive knowledge of disability.

On appeal however the EAT overturned this decision and this is explained succinctly:

The ET failed to apply the correct test, asking itself only what more might have been required of the Respondent in terms of process without asking what it might then reasonably have been expected to know. In this case, completing this exercise does not require me to engage in any exercise of substitution, still less to remit the case for further consideration. The ET’s later findings provide the answer: taking the additional steps that the ET considered would have been reasonable would have taken the Respondent no further; it could not reasonably have known of the Claimant’s disability.

The significance is that whilst it is true that a failure of an employer to make reasonable enquiries to ascertain whether a worker is disabled can form the basis for an employer’s constructive knowledge of disability it will not necessarily follow that it will. The focus of test in section 15(2) is on knowledge, not reasonableness. If enquiries into possible disability – however reasonable they are – would not result in the requisite knowledge then an employer be able to rely upon this to deny knowledge and, therefore, defeat the discrimination complaint.

This is not a helpful case for disabled workers who value their privacy. What it does mean that workers who are seeking to rely upon an employer’s constructive knowledge of their disability need to focus not just on the ways that an employer has failed to make reasonable investigations into a worker’s health but also on what knowledge conducting those investigations would elicit. Only if the enquiries would give knowledge will an employer have constructive knowledge.

In the case itself the worker did not have sufficient service to make an unfair dismissal claim but it is an interesting question as to whether, despite the failure of the discrimination complaint, the lack of unreasonable investigation would have been sufficient to render the dismissal unfair.

 

A Ltd v Z [2019] UKEAT 0273_18_2803, EAT