Although employers can be held to have “constructive” knowledge of a worker’s disability, the Employment Appeal Tribunal (EAT) held in A Ltd v Z that the employer could not have known about Z’s disability given that she consistently refused to admit that she had one. In addition, the tribunal found that she would have continued to deny her disability, even if her employer had explicitly asked her.
Basic facts
The claimant, known only as Z, was diagnosed in April 2015 with a personality disorder and paranoid schizophrenia. As such, she was a disabled person for the purposes of the Equality Act.
Prior to taking up the post of finance co-ordinator in February 2016, Z was asked to explain her extensive sickness absence with her previous employer. Rather than mentioning her psychiatric conditions, she attributed it to time off as a result of injuries following a car accident. Once she started work for the company, she continued to experience severe mental health problems but which she again attributed to physical ailments.
Although she failed to divulge any information about her disability, the employer received two GP certificates recording her low mood and “mental health” issues as well as a hospital certificate which stated that she was expected to be an in-patient receiving psychiatric care for four weeks.
Following her summary dismissal in April 2017, Z brought claims of disability discrimination under section 15 of the Equality Act 2010.
Relevant law
Section 15(1) states that: A person (A) discriminates against a disabled person (B) if:
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
Section 15(2) Subsection (1) does not apply if A did not know, and could not reasonably have been expected to know, that B had the disability.
Tribunal decision
The tribunal held that, although Z’s employer did not have actual knowledge of her disability, they had constructive knowledge as a result of seeing the medical certificates covering the two months leading up to her dismissal. As it was then incumbent on them to ask her about her mental well-being, the tribunal held that they had constructive knowledge of her disability for the purposes of section 15(2).
Nor could A Ltd show that summarily dismissing Z was a reasonably necessary means of achieving their aim of having a reliable accounting function as they had not asked her about her health problems and had not considered referring her to a medical expert. Instead they just took the “intemperate and precipitate” decision simply to sack her.
Despite this, the tribunal found that even if they had asked about her mental health, Z would have insisted that she was fit and able to work which would have resulted in a non-discriminatory dismissal. On that basis, it reduced her compensation.
EAT decision
With regard to the question of constructive dismissal, the EAT held that the tribunal had only focused on what further steps A Ltd could reasonably have been expected to take as opposed to asking whether they could reasonably have been expected to know of Z’s disability.
Given that the tribunal itself had recognised that Z would have denied her disability even if A Ltd had made enquiries as to her mental well-being, it followed that the company would still not have known about her disability. It therefore allowed the appeal on this basis.
As for justification, the tribunal had only considered whether the summary nature of the dismissal was justified but did not fully engage with the issue of the dismissal. If it had, it would have needed to take into account the business needs of the employer. Had the EAT needed to decide this point, the employer’s appeal on this ground would also have been allowed.