Disability Discrimination: Employers knowledge of disability

The Employment Appeal Tribunal (“EAT”) in the case of Mr David Seccombe v Reed in Partnership Limited has considered whether the Employment Tribunal (“ET”) was correct to conclude that the Respondent did not know and could not reasonably have been expected to know that the Claimant was disabled.

Background

The Claimant was employed by Reed (“the Respondent”) as a Supply Chain Manager. The Claimant contends that he is disabled by reason of severe anxiety and depression. Prior to the Claimant’s employment with the Respondent he had suffered occasions of ill health related to anxiety and depression, however, on commencing employment and completing the equal opportunities questionnaire, the Claimant answered no when asked if he had any health related issues or impairment for which reasonable adjustments may be required. During his employment, the Claimant suffered a traumatic event which resulted in a breakdown. The Claimant was signed off work for a short period to deal with mental health issues as a result of this event. On his return, the Claimant again did not disclose any mental health impairment on his health questionnaire.

The Claimant was summarily dismissed for poor performance and subsequently brought a claim in the ET contending that his dismissal constituted disability discrimination and/or that the Respondent had failed to make reasonable adjustments during his employment.

The Law

A disability, in employment law, is defined under section 6 of the Equality Act 2010 (“the Act”). Under this provision, a person has a disability if they have a ‘physical or mental impairment which has a substantial and long-term adverse effect on an individual’s ability to carry out day-to-day activities.’

Under the Act, it is unlawful for an employer to treat an employee less favourably because of a disability or because of something arising in consequence of a disability, whether by direct or indirect discrimination. The Act imposes a duty on employers to make reasonable adjustments for employees suffering from a disability and failure to do so is a form of discrimination under section 21 of the Act.

An employer cannot be liable for direct disability discrimination, discrimination arising from a disability or failure to make reasonable adjustments unless the employer knew, or should have known about the employee’s disability. Under section 15(2) of the Act, an employer is exempt from liability where the employer did not have actual or constructive knowledge of the disability.

Decision

The EAT dismissed the appeal, upholding the decision of the ET. The EAT concluded that the ET had not erred in law in concluding that the Claimant was not in fact disabled, or if he was, that the Respondent did not have actual or constructive knowledge and so could not reasonably have been expected to know and make reasonable adjustments accordingly.  The EAT also held that the ET was not wrong to conclude that the Claimant did not have a disability as the statutory definition of disability was not satisfied, the Claimant’s impairment could not be considered to have a long-term substantial effect on his ability to carry out day to day activities previously, or on the date of his dismissal.

Comment

This decision emphasises the law on disability discrimination and the requirement for an employer to have actual or constructive knowledge about an employee’s disability. It also provides further affirmation that to satisfy the definition of disability, an employee must meet every limb of the definition.

Case reference: Mr David Seccombe v Reed in Partnership Limited UKEAT/0213/20/OO

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Legal 500 2019