Does an employer have constructive knowledge of a disability if the employee has denied having one?
No, ruled the Employment Appeal Tribunal, based on the facts in the case of Mutombo-Mpania v Angard Staffing Solutions Ltd. The Employment Appeal Tribunal also held that it was up to the employee to provide evidence of the impact of his impairment on normal day to day activities. The employee in this case did not do this and therefore failed to establish he was a disabled person.
Under the Equality Act 2010 a person has a disability if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.
The burden of proof is on the individual to show they fall within this definition. If they do meet the definition, they will have protection under the Equality Act 2010 including:-
– The right not to be treated less favourably than others because of disability (Direct discrimination);
– The right not to be treated unfavourably because of something arising in consequence of disability without objective justification (Discrimination arising from disability);
– A positive duty on the employer to make reasonable adjustments if they are placed at a substantial disadvantage
However, an employer cannot be liable for direct disability discrimination, discrimination arising from disability or failure to make reasonable adjustments unless it knew, or should have known, about the individual’s disability.
Mr Mutombo-Mpania worked for Angard Staffing Solutions Ltd (Angard) who provided casual staff to the Royal Mail. Mr Mutombo-Mpania suffered from essential hypertension but did not declare this or declare that he had a disability in the recruitment process.
Mr Mutombo-Mpania’s contract stipulated that he had no normal hours of work, that hours of work would vary according to the needs of Angard’s business, and that there was under no obligation to offer work or to accept it.
For a year, Mr Mutombo-Mpania worked a regular late shift at a mail centre, finishing at 10pm. In the run up to Christmas 2016, he was offered and accepted a block booking to work night shifts. However, Mr Mutombo-Mpania subsequently sent emails to Angard saying that due to a “health condition” he could not work regular night shifts. When he failed to turn up to work for 4 night shifts, he was told that his services were no longer required.
Mr Mutombo-Mpania brought a number of claims in the Employment Tribunal including disability discrimination. A preliminary hearing took place to determine whether he was a disabled person under the Equality Act 2010.
The Tribunal found that:
1. Mr Mutombo-Mpania was not disabled because he had provided no evidence about the impact his physical impairment – essential hypertension – had on his ability to carry out normal day to day activities; and
2. Angard did not know and could not reasonably have known of his disability.
Mr Mutombo-Mpania appealed against both findings.
On the first point, the Employment Appeal Tribunal held that the Tribunal was correct to conclude that Mr Mutombo-Mpania failed to provide evidence of what particular day to day activities would be affected by his condition. Although he had complained that his health condition did not allow him to work regular or permanent night shifts, he gave no evidence or explanation as to the impact working a night shift had on him or why such impact was caused by his condition.
On the second point, the Employment Appeal Tribunal held that the Tribunal was entitled to conclude that the reference Mr Mutombo-Mpania made to a “health condition” in his emails and his four odd day’s absence were not sufficient to infer constructive knowledge of disability on the part of Angard, particularly given he had worked night shifts and had accepted a block booking to work night shifts. The Employment Appeal Tribunal held the Tribunal had not erred in its approach and Mr Mutombo-Mpania’s appeal failed.
Points to note
This case highlights that even if an employee/worker fails to disclose a disability to an employer, the employer may be inferred to have constructive knowledge of the disability if it has failed to take reasonable steps to discover an employee’s disability status.
Action to take
1. Be alert to the possibility that an employee/worker may have a disability even where one has not been formally disclosed.
2. Gather as much information as possible to help understand the employee/worker’s condition – communication is really important, as demonstrated in this case.
3. Obtain a medical report and ensure that you ask the advisor to provide a view on whether the employee is disabled within the meaning of the Equality Act 2010.
4. Bear in mind that you need to show you have taken all reasonable steps to find out if an employee/worker has a disability.
5. If an employee/worker has a disability, remember your duty to make reasonable adjustments.
6. If in doubt as to how to deal with an employee/worker who may or may not have a disability, seek legal advice
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