Disability discrimination - employer’s knowledge

The EAT has recently confirmed that it will be difficult for an employee to establish constructive knowledge of a disability where they have made no express reference to their impairment, particularly in the context of a performance review process.

Seccombe v Reed in Partnership Limited

The claimant was a Supply Chain Manager employed by the respondent and was summarily dismissed before he had two years’ service, for poor performance. He 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 claimant asserted that he is disabled due to his conditions of severe anxiety and depression, as a result of which he had suffered occasions of ill health related to anxiety and depression prior to commencing his employment with the respondent. He did not declare these conditions on the equal opportunities questionnaire, and 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 breakdown and was signed off work as a result. On his return, the claimant again did not disclose any mental health impairment on his health questionnaire.

After his return to work, the claimant was dismissed following a performance review meeting.

The ET concluded that the claimant was not suffering from a substantial and long-term mental impairment during his employment with the respondent, and was not therefore disabled at the relevant time. In the alternative, the ET considered that even if the claimant was disabled at the relevant time, the respondent did not know and could not reasonably have been expected to know that he was disabled. As a result, the claims for disability discrimination/failure to make reasonable adjustments had to fail.

The claimant appealed to the EAT.

The EAT dismissed the appeal, agreeing with the ET’s decision that he was not disabled for the purposes of the Equality Act 2010. The EAT also agreed that the respondent was unaware of the claimant’s previous occurrences of mental ill health, those having never been declared to them. The claimant had returned to work after a period of absence, and the respondent had no reason to think he was not fully recovered. The respondent did not know and could not reasonably have been expected to know that any effects of the impairment were long term. Furthermore, during the performance review meeting held prior to his dismissal, the claimant had not asserted that he had any impairment.

Comment

This decision emphasises the requirement for an employer to have actual or constructive knowledge of an employee’s disability. However, employers should be mindful that an ET will not only consider whether the employer did in fact know about the disability, but also whether they ought reasonably have known about it. Each case will turn on its own facts and employers should be careful to understand the true reason for any underperformance during a performance review process.