What level of knowledge does an employer need in order to be liable for disability discrimination?
In order for an employer to be liable for direct disability discrimination or discrimination arising from disability under the Equality Act 2010, they need to have knowledge of the employee’s disability.
Ordinarily, when we talk about someone having knowledge of something we refer to actual knowledge. In the context of disability, this is where the employer has sufficient knowledge of the employee’s physical or mental condition as to conclude that they meet the legal definition of having a disability. As a reminder, a person has a disability where they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Such actual knowledge might be acquired through the employee filling in a health questionnaire and setting out details of their condition, or on medical advice from occupational health or the employee’s GP, for example.
Alternatively, an employer may have constructive knowledge of a disability. This is where the employer is only aware of some facts, which alone are insufficient to give certainty that the legal definition of disability is met, but which indicate that the employee may have a disability. For example, if an employee mentioned in passing that they were struggling with anxiety, this ought to prompt the employer to consider whether the employee might have a mental health condition which amounts to a disability, and to ask appropriate questions of the employee to clarify this.
Where an employer is aware of some facts which might be indicative of a disability, they are expected to make reasonable enquiries of the employee, to clarify what their condition is and whether they have a disability. Failure to make such enquiries may itself give the employer constructive knowledge of disability.
It is also important to note that an employer will still be liable even where they do not have actual or constructive knowledge of the employee’s particular disability but do know that the employee has a disability.
In Godfrey v NatWest Market plc, Mr Godfrey was employed by NatWest Market plc (at the time, Royal Bank of Scotland plc) between 2006 and 2011. He made several unsuccessful applications to rejoin the company between 2017 and 2019, during which time he was also diagnosed with Asperger’s syndrome.
Mr Godfrey’s diagnosis came 7 years after his employment with the company had ended, but he argued that his colleagues would have been fully aware of his difficulties with communicating and with social interaction at the time they worked together, and that the company therefore had knowledge of his disability. On this basis, Mr Godfrey brought disability discrimination claims in relation to his unsuccessful applications.
In light of evidence from Mr Godfrey’s friends and a NatWest colleague, the employment tribunal unanimously concluded that the company did not have actual knowledge of Mr Godfrey’s disability. Moving to the question of constructive knowledge, a majority of the tribunal found that the company was not aware of such information as to give them constructive knowledge that Mr Godfrey had an autism spectrum condition. They also found that, even if the company had been prompted to ask questions of Mr Godfrey relating to his condition, he would not have co-operated.
Mr Godfrey appealed, arguing that the tribunal had applied the wrong test. It was not a question of whether the company had access to such facts as to give them constructive knowledge that Mr Godfrey had an autism spectrum condition. Rather, the tribunal needed to consider whether the company had access to such facts as to give them constructive knowledge that Mr Godfrey had a disability – meaning a mental impairment with a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities – rather than an autism spectrum condition in particular.
The Employment Appeal Tribunal (EAT) agreed with Mr Godfrey that the wrong test had been applied by the tribunal, and that the question that should have been asked was whether there was evidence to indicate any disability. However, given that the tribunal had found that Mr Godfrey would have refused any assessment by the company, the tribunal had been entitled to conclude that the company did not have constructive knowledge of a disability. Mr Godfrey’s appeal therefore failed.
Despite the EAT ultimately concluding in the employer’s favour, this case is an important reminder of the levels of knowledge required for an employer to incur disability discrimination-related liability. Not only will constructive knowledge be sufficient for such liability to accrue, but such constructive knowledge does not even need to be of facts which indicate the employee’s particular disability, or even category of disability – they just need to indicate that the employee may have a disability.
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