It is not unusual for an employer to face a situation, particularly with mental health issues, where somebody might even be undiagnosed themselves, where they are not sure whether or not somebody has a medical condition. As regards the duty to make reasonable adjustments for example, under the Equality Act 2010, the employer is only expected to make adjustments where they either know about somebody’s disability or they ought reasonably to have known from the information that they have.
The latter part of that sentence “ought reasonably to have known” is what is termed “constructive knowledge”. An employer is expected to do all they can reasonably be expected to do to find out if the individual does have a disability, so that might involve discussing the situation with an individual to find out about health conditions, contacting their GP if you are worried about them, offering to speak with any other specialist that they may be seeing and referring them to occupational health for assessment. Often it is a combination of those things which gives them the constructive knowledge. For example, in the case of Gallup which went to the Court of Appeal but originated here in Wales, even though the employer had been told by occupational health that the employee concerned did not have a disability, the employer should have known from the conversations that it was having with the individual themselves that this person was suffering from a disability.
There can however be circumstances where it is not reasonable for the employer to have known somebody has a disability. The recent case of A Ltd v Z which went to the Employment Appeal Tribunal (EAT) is such a case. In this case, the employee suffered from mental and psychiatric impairments for a number of years including stress, depression, low mood and schizophrenia. She didn’t disclose anything about those conditions to the employer at the outset of her employment, and when asked about absence in her previous job, she informed them that it was because she had suffered from injuries following a car accident. When she completed a medical questionnaire, she said she didn’t have any disability or any mental or physical impairment. She went on to have 52 days of sickness absence, giving reasons that related to physical ailments, the sort that the employer would not associate with any underlying problem. What she was really doing was masking the real reason for her absence and surveys tell us that employees with mental health conditions frequently do this. She was then absent for a further period and was signed off by the GP with “low mood” – she admitted to her employer at this point that she was feeling incredibly depressed and that this was triggered by difficulties with her son. She did not disclose the fact that she had been hospitalised for 2 weeks. The employer dismissed her for her absence record.
When this case went to the Tribunal, the employee argued that the employer should have had constructive knowledge of her disability because of things on her GP fit notes and a hospital certificate mentioning a deterioration in her mental health. The Tribunal found that the employer ought to have made further enquiries with the employee and its failure to do so prevented it from arguing it couldn’t reasonably have known that she was disabled.
This was then overturned at the EAT. The focus was different: instead of saying what do we expect the employer to do, the correct test was what might the employer reasonably have been expected to know. Because the employee continued to supress information about her health, and crucially I believe, admitted to the Tribunal that she would have insisted that she could work normally, and would not have entertained an occupational health referral, meant the employer could not have been expected to know that she was disabled. In simple terms, even if the employee had been asked outright, she would have continued to hide her condition from the employer. In those circumstances, the EAT was not prepared to find that the employer should have known. She failed in her disability discrimination claims.
Where does that leave us? Clearly no employer can turn a blind eye to what is going on in front of them, and it does need to look at all the sources of evidence that it has and not make judgements (not just focussing on those things that fit the narrative they wish). Often, it will be the case that constructive knowledge is there. However, where somebody is deliberately concealing the reasons for their absence, misleading their employer and not being truthful about the nature of their health condition, you will not be expected to know that they have got a disability and the employee will lose the protection of the Equality Act. For employees, it obviously incentivises them to be honest and open with their employer. There will be cases where an employee initially hides something from their employer and the information comes out later. Often I find that that information may be revealed when other processes are afoot, such as a redundancy exercise, sickness absence management or disciplinary. The key for the employer at that point is to recognise the revelation from the employee of the condition and to stop, take medical advice, and address reasonable adjustments at that point before continuing with the process.