Employer did not have constructive knowledge of employee's disability


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The Employment Appeal Tribunal (EAT) has held in A Ltd v Z that an employer did not have constructive knowledge of an employee's disability.

The employee was a part-time finance co-ordinator. When she brought a claim for discrimination arising from disability against A Ltd it was accepted that she was disabled because, since 2008, she had suffered from mental and psychiatric impairments, namely stress, depression, low mood and schizophrenia, though she had failed to disclose these impairments to her employer. During her employment with A Ltd, the claimant had 85 days of unscheduled absence, of which 52 were recorded as sick leave. She attributed these absences to physical ailments and made no mention of mental health conditions. She was finally dismissed as she could no longer be relied upon given her absences and poor timekeeping.

Although the tribunal found that A Ltd had constructive knowledge of the claimant's disability, the EAT disagreed. The tribunal had also found that the claimant would have continued to suppress information about her mental health problems, would have insisted that she was able to work normally and would not have entertained any proposal for an occupational health referral or other medical examination that might have exposed her psychiatric history. As a result the EAT concluded that, even if A Ltd could reasonably been expected to do more to find out about the claimant's health, it could not reasonably have been expected to know of her disability.

Take note: This is a relatively unusual case in that the employee was determined to conceal her mental impairments. This meant that there was no way the employer could be deemed to have constructive knowledge of her disability. However, employers still need to be aware that they must do all that they can reasonably be expected to do to find out if an employee has a disability.

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