Did a Respondent have constructive knowledge of disability in circumstances where the Claimant had not been forthcoming about her disability?
No, not on the facts in this case, held the EAT in A Ltd v Z.
The Claimant, who the parties agreed was disabled as a result of mental and psychiatric impairments, was dismissed by the Respondent because of poor attendance and timekeeping issues. Her poor attendance was something that arose in consequence of her disabilities.
The tribunal found that the Respondent did not have actual knowledge of disability, but did have constructive knowledge, and the Claimant's s.15 Equality Act claim succeeded. The Respondent knew nothing more than that the Claimant had experienced personal problems and suffered stress as a result. However, the tribunal found that it should have made further enquiries of the Claimant and fixed the Respondent with constructive knowledge accordingly.
The tribunal's error was that it had only asked itself what process the Respondent might have been expected to follow, but failed to then address the crucial question of what the Respondent ought to have known. Based on the tribunal's finding that if further enquiries had been made the Claimant would have continued to suppress information about her mental health problems and refused an occupational health referral, it followed that further enquiries would have made no difference and the Respondent did not have constructive knowledge accordingly. The claim therefore failed.
Thanks to Jonathan Cook of Cloisters, for preparing this case summary.