Z suffered from mental health conditions amounting to a disability but did not disclose this to A Ltd. At interview she attributed absences at her previous job to physical ailments. Z also completed a form stating that:
Z was employed by A Ltd for just over a year, during which she had 85 days of unscheduled absence and her timekeeping was poor. A Ltd raised concerns with Z about her absence levels and timekeeping both informally and formally at her probation review but the situation did not improve.
Z was signed off work with low mood and wrote to A Ltd stating that she felt "incredibly depressed" but listing physical ailments and not mental health as the reason for her absence. During this time, Z was hospitalised for psychiatric care but again she did not inform A Ltd about this. However, A Ltd did see a doctor's certificate stating "low mood", a hospital certificate saying that Z would be an in-patient for 4 weeks and another doctor's certificate stating "mental health and joint issues". When Z returned to work she was dismissed by A Ltd on the basis of her poor attendance and timekeeping.
The Employment Tribunal (ET) found that Z's absences and the medical certificates had raised a real question about her mental health and A Ltd should have made further enquiries. A Ltd's failure to make those further enquiries meant that A Ltd couldn't deny that it ought to have known about Z's disability. As A Ltd ought to have known about Z's disability, it had constructive knowledge of the disability, even though it did not have actual knowledge.
A Ltd's appeal to the Employment Appeal Tribunal (EAT) was successful.
The EAT agreed with the ET that A Ltd should have made further enquiries of Z's mental health. However, it held that the ET had failed to take into account its own finding that if A had made those further enquiries, Z would have continued to suppress information about her mental health.
The EAT said that the ET should have factored this into their consideration of constructive knowledge to conclude that A Ltd could not have reasonably been expected to know that Z was disabled, and so did not have constructive knowledge of Z's disability.
Z's claim for disability discrimination failed.
Employers should note that the ET and EAT both agreed that the employer in this case should have made further enquiries of its employee's health and the cause of her absence.
On these unusual facts, the employer was saved by the extreme lengths its employee went to in order to conceal her mental health conditions, which meant it would not have known she was disabled regardless of whether it made the proper enquiries. However, employers should not rely on these facts repeating themselves in their own cases.
Where there are indications that an employee is suffering from mental health issues, an employer should take proper steps to understand these issues and whether they may amount to a disability. If the employer does not take these steps, then there is a genuine risk that the employer will be fixed with constructive knowledge of the disability if a claim arises in the future.