What knowledge does an employer need to have for an employee to pursue a disability discrimination claim?
Section 6 of the Equality Act 2010 (EA 2010) outlines 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.
Further, section 15 (EA 2010) goes on to state that a person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Section 15(2) makes it clear that the prohibition from discrimination arising from disability does not apply 'if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability' ie knowledge based test.
Disability Discrimination Claim Case
In the case of David Seccombe (DS) v Reed in Partnership Ltd 2021 the Employment Appeal Tribunal (EAT) have given a decision which is a helpful judgment for employers on the above. Source
The facts of the case were that (DS) commenced employment with the employer with a 9-month probationary period and was asked to complete an equal opportunities health questionnaire to assess if any reasonable adjustment would be required to his role based upon his health. (DS) did not disclose any health impairments although prior to taking up employment he had suffered two short-term episodes of ill-health related to depression /anxiety but because of (DS) response, the employer was unaware of these incidents.
The employer identified several performance issues giving rise to performance review meetings and the employer decided to extend his probation period. At no point during these review meetings did (DS) highlight any mental health issues and his attendance record was good thus the employer had no reason to believe he had any mental issues.
(DA) then suffered a severe traumatic event experienced at work resulting in a meeting taking place to address the matter where counselling support was offered but (DS) then went off sick. The employer was aware that this incident had impacted on his mental health however following a few months of sickness absence the employee returned to work, the assumption being that the issue had been resolved therefore not being a long-term illness.
Upon return back to work, (DS) had his quarterly review meeting where it was decided that he would be dismissed on the grounds of his poor performance.
(DS) alleged that the dismissal amounted to disability discrimination as he was a disabled person at the material time and his employer was aware of his disability and tried to assert that by reference to previous bouts of sickness before joining the employer, this was long term.
Case Outcome
The Employment Tribunal (ET) dismissed (DS) claim deciding that at the relevant time of his dismissal he had failed to show that his mental impairment was ‘long-term’ as the effects of his mental health only lasted a few months before he had returned to work and that looking at (DS) GP notes , it showed two discrete periods of anxiety and depression few years apart, both incidents had separate trigger events and neither of which had lasted more than a few months and even if (DS) was disabled, he had not raised this during his employment and in fact declared the opposite in his equal opportunities medical questionnaire. Therefore, the (ET) found that the employer did not know and could not reasonably have been expected to know that the (DS) was disabled.
On appeal to (EAT), the (EAT) upheld (ET)’s ruling concluding that there was no perversity in the tribunal’s decision and went on to highlight that the requirement that a disability must be long term relates to the effect of the impairment on day to day activities as opposed to the impairment itself and further in assessing if an employee has a disability, what an employee does and does not say about their impairment should be taken into account as they are best placed to explain the effect their impairment on their day-to-day activity.
This case is quite helpful to employers as knowledge of a disability is a pre-requisite for a successful claim of disability discrimination under section 15 (EA 2010), but employers should not close their eyes to the possibility that an employee maybe disabled under the (EA 2010) and thus would normally be prudent to first consider medical clarity on the matter as in this case the Employment Tribunal did take into account (DS)’s GP notes as to his medical history.
Please note that this article is for information purposes only and should not be relied upon as being authoritative on the matter however further guidance on the matter can be provided by contacting our HR/legal advice-line on 01455 852028.
