Could an employee bring a disability discrimination claim after keeping her serious mental health condition secret?

Employer could not reasonably be expected to know about a disability as employee was unlikely to engage with medical enquiries

Employees may be reluctant to share details of a mental health condition with their employer. In some cases, they may attribute their sickness absence to physical ailments and fail to disclose the real reason to the employer. Could it still be possible for such employees to succeed in a disability discrimination claim? 

Section 15 of the Equality Act 2010 (the Act) makes it unlawful to treat someone unfavourably because of something arising as a consequence of a disability (for example sickness absence).  An employer can justify any such unfavourable treatment if it is a proportionate means of achieving a legitimate aim.

For a section 15 claim to succeed, the employer must have actual or constructive knowledge of the claimant's disability. In other words, a tribunal will consider whether the employer actually knew or could reasonably have been expected to know that the employee had a disability, i.e. a mental or physical impairment with a long term and substantial adverse impact on the employee's ability to carry out normal day to day activities. There is no need for the employer to have actual or constructive knowledge of any particular medical diagnosis. It will be enough that they should have known that the impact of the condition on the employee met the criteria for a disability under the Act.  

Where there are circumstances which suggest that the employee may have a disability, for example persistent absences, the employer should take reasonable steps to find out more about the employee's medical condition.

There is no separate requirement for the employer to know about the link between the "something arising" and the disability. It will therefore be no defence to argue that the employer did not know that the sickness absence in question was linked to a known disability.

When assessing compensation in a discrimination case, the tribunal will aim to put the claimant in the position she or he would have been in if the discrimination had not happened. Compensation can be reduced in accordance with the likelihood that the claimant would have suffered the same wrong (e.g. dismissal) for a non-discriminatory reason.

Case details: A Ltd v Z

In A Ltd v Z the EAT ruled that the employer did not have constructive knowledge of the claimant's disability because the claimant would not have engaged with medical enquiries if they had been made.

Z was employed for just over a year as a part-time finance co-ordinator for A Ltd. Z's stress, depression, low mood and schizophrenia qualified as a disability under the Act.

Before Z commenced her role, she was asked to explain her 30 day sickness absence with her previous employer. She gave a misleading explanation, attributing the absence to injuries arising from a car accident. Z also stated on a questionnaire, answered shortly after her employment began, that she did not have a disability. Z was absent for 85 days during her employment, with 52 of these being recorded as sick leave. The true reason for many of these absences was her severe mental ill health. However, Z attributed them to physical ailments on each occasion.

A Ltd raised concerns with Z about her absences and poor time-keeping both informally and formally in her probation and end of year reviews.

The claimant returned to work after a two-month absence. On her first day back, she was late arriving for work. The Chief Executive informed her that she could no longer depend on Z and that she was dismissed because of her sickness absence and poor time-keeping. At the time of the dismissal, the employer had seen GP's certificates stating that she was suffering from "low mood" and referring to "mental health and joint issues" and a hospital certificate showing that she was expected to spend four weeks as an in-patient.

In considering Z's claim under section 15 of the Act, the tribunal found that the employer did not have actual knowledge of the disability at the date of the dismissal. However, it concluded that the employer ought reasonably to have known about the disability at this date. It noted that employees suffering from poor mental health will often be reluctant to disclose such conditions. Given the sophisticated (although not large) nature of the employer organisation, it should not have taken the claimant's silence on her mental health as conclusive and should have made further enquiries after receiving the GP and hospital certificates. The tribunal found that the dismissal for poor attendance was unfavourable treatment because of something arising in consequence of her disability. The "intemperate and precipitate" nature of the "on the spot" dismissal led the tribunal to conclude that it could not be justified as a proportionate means of achieving a legitimate aim. The tribunal took into account that the employer did not follow the statutory Equality and Human Rights Commission (EHRC) Code of Practice, did not hold a return to work meeting and did not refer Z to occupational health or seek information from a medical expert.

The tribunal reduced the claimant's compensation by 50% because of the probability that she would have failed to engage with any medical enquiries made by the employer and that she would have been dismissed before the second anniversary of her appointment. It also reduced the compensation by 20% for the claimant's contributory fault because the claimant's poor time-keeping was a factor in her dismissal (which was unrelated to her disability).

The EAT set aside the tribunal's decision on the question of constructive knowledge and so the claim was dismissed. It held that the employer did not have constructive knowledge of the disability. The tribunal should have asked itself what the employer would have known if it had made further enquiries about Z's health. As the tribunal had found that it was likely that the claimant would not have disclosed her conditions on further enquiry, it should not have concluded that the employer should reasonably have known about the disability. The EAT noted that the EHRC Code of Practice requires that employers consider issues of dignity and privacy when making enquiries about disability. The EAT commented that it is not reasonable to expect employers to "impose themselves" by pursuing medical enquiries when an employee wishes to keep their health condition secret.

The EAT also ruled that the tribunal had not properly considered the question of whether the unfavourable treatment was justified as it had failed to take into account the business needs of the employer.

Comment

This case is a useful reminder of what will be expected of employers where an employee has frequent and/or long term sickness absences but fails to disclose a condition which could qualify as a disability.

As the EAT notes, it is not surprising that employees are reluctant to reveal serious mental ill health given the continuing stigma of such conditions inside and outside the workplace. Employers should not simply go along with the "silence" of an employee on such a condition. The EHRC Code of Practice states that employers must do all they can reasonably be expected to do to find out if a worker has a disability. If employers have sufficient evidence to put them on notice that the employee may be suffering from a condition qualifying as a disability, they should try to find out more by referring the employee to occupational health and/or seek information from the employee's consultant or GP.

However, where the employee does not or is not likely to co-operate with such enquiries, this case suggests that a tribunal will find that the employer could not reasonably have been expected to know about a disability.

The question of whether the employer might have been able to justify the on the spot dismissal in this case remained unresolved.  Employers should be aware that it will be difficult for an employer to justify dismissing an employee because of something arising from a disability where it does not follow a fair dismissal process and take into account the EHRC Code of Practice.