By Louise Walker, Senior Solicitor.
Yes, said the Employment Appeal Tribunal (EAT) in a recent judgment.
It is a well-established principle of discrimination law that for an employer to unlawfully discriminate against an employee in relation to a disability, they must have actual or constructive knowledge that the employee was disabled.
The EAT has recently decided that an employer who had no actual or constructive knowledge of their employee’s disability at the point of dismissal, nonetheless did have constructive knowledge of the disability at the time of the employee’s appeal against dismissal, and their obligations towards the employee under the Equality Act were therefore engaged.
The case involved an employee who, upon the end of her six month probationary period, was dismissed due to her underperformance and her “unusual” behaviour. The employee appealed against the decision to dismiss her. During the appeal meeting, the employee revealed that she suffered from depression. The employee stated that her condition had a direct impact on her behaviour and performance, causing her to respond aggressively to others and affecting her short-term memory. The employer rejected her appeal and the employee subsequently claimed that she had been subject to ‘discrimination arising from a disability’ under the Equality Act 2010.
The Employment Tribunal (ET) found in favour of the employer. It held that the employer did not know and could not have reasonably been expected to know that the employee was disabled at the time of dismissal.
The employee appealed this decision to the EAT, who upheld the appeal, stating that the ET had made “some serious errors” in its’ judgement. The EAT made clear that although the employer did not know about the employee’s disability at the time of the dismissal, they “may have acquired actual or constructive knowledge of it before the rejection of her appeal”.
What does this mean for employers? The case demonstrates that even if you don’t know about an employee’s disability at the point you dismiss them, you may have to reconsider the dismissal in light of disability legislation if the employee raises grounds of appeal suggesting that they may be disabled, or suggesting that you have failed to comply with your duties under the Equality Act (such as making reasonable adjustments).
Employers can be taken to have constructive knowledge of a disability without an employee having to say to them in clear terms that they are disabled. Where you are considering the dismissal of an employee with any long-term or chronic medical condition, it is wise to take specialist legal advice before acting. It may also be prudent to obtain a medical report as to the employee’s condition and how it may impact on their ability to do their job.
If you have any questions about this update, or you would like support or guidance on any other employment law matter, please do not hesitate to contact a member of our legal team on 0141 331 5150.