Constructive knowledge of disability

16 September 2019

An employer will not discriminate against someone because of their disability if the employer did not know, and could not reasonably have been expected to know, that the employee was disabled.

Whether an employer could reasonably be expected to know about a disability is often referred to as 'constructive knowledge'.

In A v Z, the employee was employed as a part time finance coordinator for less than six months. She had stress, depression, low mood and schizophrenia, but had not told her employer about these conditions. When she was recruited, she had explained away significant historical sickness absence with physical illness. She completed a form saying she did not have a disability. During her short period of employment, the employee had 85 days' absence, with 52 days recorded as sick. Again, the employee said her absence was due to physical illness. She did not mention any mental health issues. She was signed off with low mood and wrote to the employer a week later, saying she was 'incredibly depressed' due to family problems. However, she did not tell her employer when she was hospitalised for two weeks for psychiatric care and continued to explain her absence with physical illness. When she was dismissed, she brought a disability discrimination claim. The question for the tribunal to decide first was whether the employer had constructive knowledge of her disability.

The employment tribunal said that they did. The employer had received GP and hospital certificates which showed a deterioration in the employee's mental health. The employer should have asked about this. They couldn’t now claim they didn’t know about her condition just because they had failed to ask the right questions. The Employment Appeal Tribunal disagreed. The tribunal had only asked what other procedural steps the employer could have taken. They hadn’t then asked what the employer would have found out if they had made those further enquiries. Even if the employer had asked more questions, the original employment tribunal had already decided that the employee would have continued to withhold information about her mental health, insisted she was able to work normally and would have refused further medical examination. Although the employer could have done more, it did not have constructive knowledge of her disability. Consequently, the employee was not protected by the Equality Act 2010.

This case is a good reminder of the need to investigate any facts which point towards disability even if the employee denies being disabled. Some employees who meet the legal definition may not consider themselves to be disabled. It can be tricky though. Employers must carefully balance the need to make necessary enquiries against the dignity and privacy of employees. This isn’t always an easy line to draw, and expert advice is sometimes wise.


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