The Employment Appeal Tribunal (EAT) decided that where an employer fails to make reasonable enquiries about an employee’s health issues, if the likelihood is that the employee would have continued to conceal their disability, then the employer could not reasonably be expected to know about the employee’s disability.
Z, who had mental health impairments that amounted to a disability, worked as a part-time finance co-ordinator at A Ltd. She did not disclose any health issues to A Ltd during the recruitment process. After nearly 14 months’ employment Z was dismissed because, with her poor attendance and timekeeping, she could not be depended on.
Z subsequently brought a disability discrimination claim on the basis of unfavourable treatment because of something ‘arising from’ her disability. This form of discrimination occurs where X treats Y unfavourably because of something arising in consequence of Y’s disability, and X cannot show that the treatment is a proportionate means of achieving a legitimate aim. However, this does not apply if X shows that it did not know, and could not reasonably have been expected to know, that Y had the disability.
The Tribunal upheld Z’s claim and A Ltd appealed.
While the EAT agreed with the Tribunal that A Ltd should have made further enquiries into Z’s mental health, it also said that the Tribunal should have taken its finding into account in its decision. Its finding was that even if A Ltd had made those further enquiries, Z would have continued to withhold information about her mental health and would not have agreed to an occupational health referral or other medical examination that might have revealed her psychiatric history. So the EAT concluded that A Ltd could not reasonably be expected to know that Z was disabled.
The circumstances of this case were unusual, with the employee determined to conceal information about her mental health – and therefore her disability.
If there are indications that an employee has mental or physical health issues, employers should take reasonable steps to establish whether these issues may amount to a disability. What amounts to ‘reasonable steps’ will depend on the circumstances, and involves a balance between the obligation to make enquiries, the likelihood that the employee will provide the information and the dignity and privacy of the employee.