Discrimination: knowledge of disability

Discrimination: knowledge of disability

Employees can be transferred to multiple new employers under TUPE

Two recent cases on disability discrimination have highlighted the impact of actual or constructive knowledge of a disability in discrimination claims.

An employer cannot be liable for direct discrimination, discrimination arising from a disability or failure to make reasonable adjustments unless it knew, or should have known about the disability.

A disability is defined under the Equality Act as a physical or mental impairment that has a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities. Both these cases focus on invisible disabilities: Autism, Attention deficit hyperactivity disorder (ADHD) and Post-traumatic stress disorder (PTSD). These types of invisible disabilities, unless formally diagnosed and communicated, can be tricky to navigate for employers.

Godfrey v NatWest Market PLC is a recent Employment Appeal Tribunal case which considered claims of direct disability discrimination and discrimination arising from disability brought by a former employee of NatWest who was diagnosed with Autism years after his employment ended. Following two separate unsuccessful job applications to NatWest, Mr Godfrey brought these discrimination claims and argued that NatWest would have had actual or constructive knowledge of his condition on the grounds that those who had worked with him before would have been aware of his social and communication challenges.

The Tribunal and the EAT held that NatWest did not know (and could not reasonably have been expected to know) that Mr Godfrey had a disability. In reviewing the evidence available, it was not clear that Mr Godfrey had any impairments, and therefore NatWest couldn’t have actual knowledge of Mr Godfrey’s condition. The Tribunal also found that had NatWest tried to investigate to establish whether Mr Godfrey had a disability, Mr Godfrey would not have co-operated with their attempts and therefore NatWest did not have constructive knowledge either. Mr Godfrey’s claims failed on this basis.

This contrasts with another recent case; Mrs Wright-Turner v London Borough of Hammersmith and Fulham and Ms K Dero, where the employee had disclosed her PTSD and ADHD diagnoses in her pre-employment health questionnaire, so the employer unquestionably had actual knowledge of her diagnosis. In this case Mrs Wright-Turner had been treated differently due to her conditions. After her probationary period was extended by three months, a period of long-term sick leave and Mrs Wright-Turner raising two separate grievances, she was eventually dismissed. The Tribunal found that Mrs Wright-Turner had been harassed and directly discriminated against and an award for over £4.5m was made.

Employers should of course be mindful where employees have disclosed a disability to make reasonable adjustments but should also do all they reasonably can to find out if an employee has a disability, where they are on sufficient notice of an impairment. If an employer thinks that an employee may have a disability, because they are experiencing difficulty in day-to-day activities, they should make enquiries as to the nature of the employee's impairment and consider occupational health assessments to consider what reasonable adjustments may be required. If the employer has some evidence of an impairment, but takes no steps to investigate or support the employee then it may find itself with constructive knowledge of a disability.

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