Disability Awareness: EAT considers constructive knowledge

Disability is defined in the Equality Act 2010 as:

…a physical or mental impairment, which has a substantial or long-term adverse effect on the person’s ability to carry out day-to-day activities.

This issue arises constantly in case law, particularly given that employers have a duty to make reasonable adjustments in the workplace to assist a disabled person with their ability to work. We covered a number of these cases previously, here. However, in order for the duty to engage on an employer, the employer must be aware of the employee’s disability.

The Employment Appeal Tribunal (EAT) recently considered this in Seccombe v Reed in Partnership [2021], an appeal in which the Claimant ultimately failed in his claim for disability discrimination, because the employer was deemed not to be aware of his disability.

Background

Mr Seccombe was a Supply Chain Manager at Reed in Partnership (“Reed”) from 28 November 2016 until he was summarily dismissed on 28 March 2018. Mr Seccombe claimed he had suffered from various disabilities since 2007. He submitted medical notes citing depression in 2007, spinal surgery in 2008 and incidents of chest pain and anxiety in 2015. These were all before he began work with Reed. However, when he did begin work with Reed, Mr Seccombe did not refer to disability when asked about it on a disability questionnaire.

Mr Seccombe had been subject to performance management and extended probation, before 26 December 2017, when Mr Seccombe suffered what the judgment referred to as “a traumatic event”, which upset Mr Seccombe and caused a period of ill health and some absences from work.

Mr Seccombe returned to work from 19 February 2018, but remained under performance review. He was dismissed on 28 March 2018, ostensibly on grounds of poor performance. The day before, he had completed a form saying that the issues arising from the traumatic event were ongoing, but he did not claim a disability.

Decision

Mr Seccombe claimed he was dismissed as he suffered from anxiety and depression, which he alleged were disabilities. His claim was dismissed in the Employment Tribunal and he appealed to the EAT. The EAT noted “…the claimant had to establish that he had at some stage prior to the alleged discrimination had a mental impairment that had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”

The EAT considered that the Tribunal had accepted that Mr Seccombe was suffering from adverse effects on his ability to conduct day-to-day activities from late 2017 to early 2018, and Reed were aware of this. However, Reed were entitled to consider that he had recovered following his return in February 2018, and that they did not know, nor could they reasonably be expected to know, that the effects were long-term.  Mr Seccombe’s occasional references to his mental health were not enough to put Reed on notice of a disability, and so Mr Seccombe’s claim failed at the EAT too:

“As the Tribunal was entitled to conclude that the respondent did not have actual or constructive knowledge of an impairment that had a substantial adverse effect on the claimant's ability to carry out normal day-to-day activities that was long-term, that was sufficient to defeat the disability discrimination claims brought by the claimant.”

Lessons

• As well as having an impairment that may qualify as a disability, an employee must show that their employer knew about the disability (actual knowledge), or could reasonably have been expected to know (constructive knowledge).
• The effect of the impairment on the ability to carry out day to day activities must be long term. “Long term” generally means the effects last, or are likely to last for at least 12 months.

Whether an employer will have actual or constructive knowledge of someone else’s disability will always be a conundrum for employers.  Employers are not entitled to ignore issues of which they are aware to avoid having knowledge.

Understanding the issue of knowledge will in some cases be key to understanding an employer’s obligations towards an employer.  Only once an employer has actual or constructive knowledge of a disability do the other obligations, such as the duty to make reasonable adjustments arise.