A balancing act between the employee’s obligations and employer’s constructive knowledge.
In a recent case the Employment Appeal Tribunal (EAT) considered an employee’s obligations to notify their employer about a disability. Overall, the judgement is more favourable to employers but it does contain some warnings that employers should bear in mind.
Mr Mutombo-Mpania was employed by Angard Staffing Solutions, a company which supplies casual staff to the Royal Mail. He did not inform his employer that he suffered from essential hypertension. The recruitment and health forms he had completed indicated that he did not consider himself to have any form of disability.
His working hours were changed to night shifts on the run up to Christmas 2016 which was permitted by his contract of employment. He then told his employer that his health condition prevented him from working regular night shifts. Despite continuing to accept night shift work, he was absent from night shifts on four occasions. He was eventually told that his services would no longer be required.
As a result he raised a claim of disability discrimination at the Employment Tribunal (ET). The ET dismissed his claim and he appealed to the EAT who also dismissed his claim as he had failed to provide evidence of how his condition impacted on his ability to carry out normal day to day activities. In such cases the burden is on the employee to prove with appropriate evidence that he has a disability under the legal definition in the Equality Act 2010.
A further point to note is that a tribunal will also consider whether the employer had constructive knowledge of an employee’s disability. In this particular case the employer was found not to have had constructive knowledge of the employee’s condition, despite him having mentioned he had a “health condition” by email and having had a number of days’ absence. This comes with a note of caution though because in this particular case this information was overridden by the fact that the employee had worked night shifts before and had specifically denied having a disability.
Typically we would advise that if there are any indications that an employee may be suffering from an underlying condition, an employer should take all reasonable steps to understand the impact of that condition on the employee’s ability to carry out their role and normal day to day activities before making a decision about their ongoing employment.