Scrase Law Employment Solicitors

When does an employer know that an employee has a disability?

Disability discrimination occurs where an employer treats an employee unfavourably because of their disability and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim.  However, an employer will have a defence if it did not know about the employee’s disability.  It will also have defence if it could not reasonably have been expected to know about the employee’s disability, referred to as ‘constructive knowledge’. 

Background

Mr G issued claims of disability discrimination in the Employment Tribunal.  He alleged that this was due to the employer’s refusal to consider him for various vacancies that he unsuccessfully applied for between 2017 and 2019.   Mr G had previously been employed by the employer between 2006 and 2011. 

Mr G’s Asperger’s syndrome is a disability under the Equality Act 2010.  He argued that the employer had been aware of relevant facts of his disability due to experience of his behaviours when it previously employed him.  Although he was not diagnosed with Aspergers until 2018, he argued that those who worked with him would have been aware of his communication and social interaction problems on a daily basis.  The employer argued that it did not know, and could not reasonably have been expected to know, of Mr G’s disability.

The claim

The Tribunal found that the employer had no actual knowledge of Mr G’s disability.  It also found that there was nothing that would reasonably have put the employer on notice of the disability.  It looked back at what was, or ought reasonably to have been, apparent to the employer during Mr G’s earlier employment.  It concluded that there was no factor that would have caused anyone at the employer without in-depth training in autistic spectrum disorders to have reached the conclusion that Mr G’s differences might be the result of a mental impairment.  In particular, ‘considering somebody to be odd or inept at social interaction does not, without more, confer knowledge of a mental impairment that amounts to a disability.’  As a result, the employer did not have constructive knowledge of Mr G’s disability.

Did the employer know about the disability?

Mr G appealed to the Employment Appeal Tribunal (EAT).  His appeal was unsuccessful.  The EAT noted that the employer must be able to show that they did not know (and could not reasonably have been expected to know) that the employee had a physical or mental impairment that had a substantial and long-term adverse effect on his ability to carry out day-to-day activities.  On the particular facts of this case, there was limited evidence of any behaviours that would have alerted the employer to the factual elements of a disability.  The Tribunal was entitled to conclude that the employer did not have actual or constructive knowledge of Mr G’s disability.

Comment

The Equality and Human Rights Commission Employment Statutory Code of Practice states that “Employers should consider whether a worker has a disability even where one has not been formally disclosed.  ..  An employer must do all they can reasonably be expected to do to find out if a worker has a disability.”  Whether an employer knew, or ought reasonably to have known, about a disability will be a question of fact to be determined by the Employment Tribunal based on the particular circumstances of the case. 

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Mr Godfrey v Natwest Market PLC

30 May 2024

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