Constructive Knowledge - Employer Defeats Claim Thanks to Reasonableness Test

Under Section 15 of the Equality Act 2010, an employer's duty to make reasonable adjustments for an employee who is disabled is only triggered if the employer has actual knowledge or could reasonably be expected to know (has 'constructive knowledge') of the disability. To defeat a claim that it had constructive knowledge of an employee's disability, the employer must show that it was unreasonable for it to be expected to know that the employee suffered an impediment to their physical or mental health or that the impairment had a substantial and long-term effect.

In cases where the employee has a poor attendance record, the explanations given for their absences can be important when determining the question of reasonableness. In deciding whether or not an employer had constructive knowledge of an employee's disability, an Employment Tribunal (ET) must reach a decision based on the individual facts of the case.

In A Limited v Z, the claimant was dismissed from her job as a part-time finance coordinator, working for an organisation that brings together contractors and trade associations in the construction industry, because of her poor attendance and timekeeping. It was accepted at the ET that she was disabled for the purpose of the Act because she suffered from mental and psychiatric impairments – namely stress, depression, low mood and schizophrenia. She had made no mention of her conditions when her employer had inquired about her sickness absence in her previous job, however, and had replied 'no' to questions asking if she had any form of disability on a questionnaire she was asked to fill in shortly after taking up her post. When asked about her frequent absences from work, she had not disclosed her conditions to her employer, but gave alternative reasons for her health-related absences, deliberately omitting any reference to her psychiatric conditions.

Whilst her employer had conceded that the claimant was a disabled person for the purposes of the Act, the issue was whether or not it had actual knowledge at the time of her employment that she had any form of mental illness or mental impairment. The ET found that although her employer was aware that she experienced stress and distress on occasions, on account of difficult personal and family circumstances, the weight of the evidence 'pointed to these symptoms being unremarkable and unsurprising reactions to problems in her life'. It did not therefore have actual knowledge of her disability. However, the ET concluded that, by the time of her dismissal, her employer should have enquired further into her wellbeing and this failure prevented it from successfully defending a claim that it ought to have known that she had a disability.

On appeal, the Employment Appeal Tribunal found that the ET had failed to apply the correct test. It had sought to answer the question of what the employer might reasonably have been expected to do in terms of enquiring after the claimant's wellbeing, given that people with mental health conditions are often discouraged from disclosing them because such problems often carry a stigma. However, that did not answer the question of what the employer might reasonably be expected to know having made those enquiries. The ET's later findings provided the answer. It had expressed the view that the claimant would have continued to suppress information regarding her mental health problems and would not have agreed to an occupational health referral or other medical examination that might have revealed her psychiatric history.

The inevitable conclusion, therefore, was that taking such steps would not have made any difference and the employer could not reasonably have known of the claimant's disability.