Employer not liable for disability discrimination without knowledge of disability
The Employment Appeal Tribunal (EAT) has upheld a decision that a bank had no actual or constructive knowledge of a former employee's neurodiversity, which was diagnosed several years after his employment ended.
Employer's knowledge of disability
Where an employee brings a claim of discrimination arising from disability, an employer can successfully defend its position by demonstrating that it did not know, and could not reasonably have been expected to know, that the employee was disabled. This defence is not a licence to simply ignore evidence of a disability. Employers must do all they reasonably can to find out whether a person has a disability.
In the case of Godfrey v Natwest Market PLC, the question arose as to whether the claimant's former employer should have reasonably known about a disability that was not diagnosed until several years after the claimant left his job.
The facts of the case
Mr Godfrey (the claimant) had worked for the respondent between 2006 and 2011. He left his position, and subsequently applied for various vacancies between 2017 and 2019. He was unsuccessful in his applications. In 2018, the claimant was diagnosed with Asperger's Syndrome. The claimant claimed that in rejecting his various job applications, the respondent had discriminated against him on the grounds of his disability. His claims were for direct discrimination and for discrimination arising from disability. He argued that his need for quiet and space, and the fact that he would not engage in conversation or social interaction in the same way as others, prompted the respondent to treat him unfavourably.
The Tribunal rejected the claims. One of the issues for determination was whether the respondent had any actual or constructive knowledge of the claimant's disability. The Tribunal found that the respondent had no actual or constructive knowledge, and that even if they had sought to investigate during the claimant's employment, the claimant would not have co-operated with the investigation in any event.
The claimant appealed to the EAT.
EAT decision
The EAT dismissed the appeal, despite disagreeing with the Tribunal's reasoning in some respects. There was limited evidence of any behaviour by the claimant during his employment that would have alerted the respondent to a potential disability. The Tribunal had followed the correct legal test to conclude that the respondent had not known the claimant had a mental impairment amounting to a disability during his employment.
Regarding whether the respondent might reasonably have known about the claimant's disability (constructive knowledge), the EAT disagreed with the Tribunal's reasoning. The Tribunal considered if the respondent should have investigated for autism, but the correct test was whether the respondent should have inquired about any general mental impairment based on the claimant's behavior.
As the Tribunal had not asked itself this more general question, its reasoning on this point was unsafe. However, it was entitled to make a finding of fact that the claimant would have refused an assessment in any event. On this basis it was open to the Tribunal to find that the respondent had no actual or constructive knowledge of the claimant's disability.
Key takeaways
Whilst this is a fact sensitive decision, it contains a point of general interest on the topic of the constructive knowledge of disability.
When considering constructive knowledge, the correct test will be to ask whether an employer might reasonably have been alerted to the need to make further general enquiries about the possible effects of an impairment. In this case, the claimant was considered to have a good attitude and his interpersonal skills did not fall short of what the respondent expected or required. As such, there was no need for the respondent to make general enquiries about the claimant's mental health.