It is not uncommon for an employer to have an employee presenting with physical ailments when really underlying the position is a mental health condition.  An employer can worry about the extent to which they are going to be found liable for disability discrimination, when it is difficult for them to know what is going on behind the scenes, and if an employee is being honest with them.  

A recent case, A Limited v Z, which went to the Employment Appeal Tribunal illustrates this.  When the employee had been recruited, she did not disclose any medical condition to her employer, although she was in fact disabled within the meaning of the Equality Act 2010, because in the last 9 years or so she had suffered from depression, low mood and schizophrenia.  When she took a significant level of absence, the reasons that she gave for that absence related to knee surgery, back and neck injuries resulting from a car accident, and a number of other low-level physical issues. 

Within the paperwork that she had given the employer, she had said she had no physical or mental impairment which had a substantial and long-term adverse effect on her ability to carry out normal day to day activities, ie. she signed to say she wasn’t disabled.

When she had been with her employer for a year she was signed off with “low mood” and she wrote to her employer explaining her absence stating that due to problems with her son, she was feeling “incredibly depressed”.  However, she did not mention any mental health condition, referring instead to various physical ailments.  She was hospitalised for psychiatric care but did not tell her employer and continued to provide information about physical impairments. Two months later, when she returned to work, her employment with the small organisation was terminated due to her level of absences.  

She claimed discrimination arising from a disability and the Employment Tribunal agreed.  It accepted that whilst the employer knew the employee had a difficult personal and family life, which on occasion caused her stressed, it had not known that she was suffering from any mental illness or impairment.  However, it found that the employer had constructive knowledge of her disability because it received GPs notes,  and her hospital certificate evidenced a significant deterioration in the employee’s mental state.  This meant that there was a real question about her psychiatric health and it was incumbent upon the employer to then enquire into her mental wellbeing.  As they had failed to do so, they could not argue that they did not know that the employee was disabled.

When it got to the Employment Appeal Tribunal, the Judge criticised that decision: the employer could not reasonably have known about the disability and the claim should have been dismissed.  It summarised the authorities in this area as follows:

  • There only needs to be actual constructive knowledge of the disability itself, not the causal link between the disability and the consequent effects which the employees arguing led to unfavourable treatment.
  • The employer need not have constructive knowledge of an employee’s diagnosis to satisfy the requirements of the legislation.  The employer must show that it was unreasonable for it to be expected to know that an employee suffered an impediment to their physical or mental health and that this had a substantial and long-term effect.  Employee’s representations as to the cause of absence can be important, because without knowing the likely cause of the given impediment, it becomes much more difficult to know whether it may well last for more than 12 months which is necessary for something to be a disability.  It is also important to know whether the employee has suffered a substantial adverse effect.  Reaction to life events may fall short of the definition of disability.
  • The EHRC Code states that it is not enough for the employer to show that they did not know the disabled person had the disability.  They must also show that they could not have reasonably been expected to know about it.  Employers have to consider whether a worker has a disability even when one has not been formally disclosed, as for example, not all workers who meet the definition of disability may think of themselves as a “disabled person” (paragraph 5.14).  An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances.  This is an objective assessment.  When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially (paragraph 5.15).
  • It is not incumbent upon an employer to make every enquiry where there is little or no basis for doing so.
  • Reasonableness must entail a balance between the strictness of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee.  In this case, the Tribunal did not apply the correct test: it had asked itself only what more the employer might reasonably have been expected to have been done in terms of process, without asking what they might reasonably have been expected to know.

The Tribunal had found that the employee in this case would continue to supress 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.  That being the case, the employer could not reasonably have been expected to do more about the employees’ health, and could not reasonably have been expected to know about the disability.

Hopefully this case will make you see that you aren’t going to be saddled with liability when you couldn’t reasonably be expected to know about a disability but also the importance of trying to do everything you can to understand the picture in front of you.