Constructive knowledge: What if you don’t know your employee is disabled?
The question for constructive knowledge under s.15(2) of the Equality Act 2010 (‘EqA 2010’) is what the Respondent could reasonably have been expected to know, not what more it could reasonably have done to find out – A Ltd v. Z (hereafter A v. Z), UKEAT/0273/18/BA, HHJ Eady QC.
S.15(2) of the EqA 2010 disapplies the prohibition against treating another (B) unfavourably because of something arising in consequence of B’s disability, if one can show they did not know, and could not reasonably have been expected to know, that B had the disability.
A, the Claimant, was employed by Z, the Respondent, as a finance co-ordinator. The Claimant was disabled – she suffered from, amongst other conditions, schizophrenia.
The Claimant did not disclose these conditions to the Respondent upon hire or at any later time during her employment.
The Claimant’s attendance record was poor and ultimately led to her dismissal.
The Claimant at that point explained her poor attendance by reference to general illnesses (without directly mentioning or specifying her mental health conditions).
The Respondent had had sight prior to dismissal of medical records that made reference to in-patient stays by the Claimant and ‘mental health… issues’.
It nevertheless proceeded to dismiss.
The ET found that the Respondent had constructive knowledge of the Claimant’s disability prior to her dismissal. Relying on the sight it had had of the medical records, it held that:
“…it was incumbent upon the Respondents to enquire into the Claimant’ mental well-being and that their failure to do so precludes them from denying that they ought to have known that she had the disability.”
Dismissal could not be justified and the s.15 claim succeeded.
The EAT began by summarising agreed principles applicable to s.15(2) determinations.
The burden of proof is on the Respondent as to what it could reasonably be expected to have known about the Claimant’s disability.
Although the ET found that the Respondent might reasonably have been expected to enquire (given the stigma of mental health conditions), that did not resolve what the Respondent might reasonably have been expected to know after having made those enquires.
The EAT accepted that had those enquiries been made, the Claimant would have continued to suppress her condition, meaning the Respondent could not reasonably be expected to have known more than it did even if it had made further enquiries.
In this case, the Claimant’s condition was impacting significantly on her attendance ,which led to the Respondent considering the need to dismiss.
Not all Claimant’s with disability, who also fail to disclose the same to their employers, will continue to do so if the employer takes positive steps to enquire about the reasons why, for instance, the employee’s attendance is unsatisfactory. If they do, A v. Z is helpful authority to limit the obligations and expectations of an employer.
However, for the purposes of s.15 EqA 2010, it is important to focus on what the Respondent knew, or could have reasonably been expected to know, about the disability. The end focus is not on whether the Respondent could or should have done more – but whether, if a reasonable employer had taken further steps – that would have led to the Respondent having sufficient knowledge of the disability.
10 July 2019