Knowledge of Disability - Can Employers Rely Solely on an Employee's Disclosure?
Employers often ask whether declarations that an employee is not disabled on an application form or health questionnaire are good evidence that they could not have known about a particular health condition.
As the Mpania case illustrates, whilst such declarations are part of the evidence an Employment Tribunal would consider, they are very unlikely to be conclusive in themselves. Employment tribunals will look to see whether there is any other evidence which should have put the employer on notice before reaching a decision.
It is therefore important for employers to remain alive to the health of their workforce regardless of what has been indicated on any health questionnaires and in particular to make any relevant enquiries were health concerns are raised.
Francis Mutombo Mpania v Angard Staffing Solutions Ltd
Mr Mpania, worked for Angard Staffing Solutions Limited (Angard) as a flexible resourcing employee. Mr Mpania worked shifts when required and had no normal hours of work.
During the recruitment process, Mr Mpania indicated that he did not have any form of disability.
After a year of employment, Mr Mpania sent an email saying he had a health condition which prevented him from working regular night shifts but he did not identify what that condition was. Mr Mpania was then absent from some shifts and was informed that he would not be offered further work on account of his absences. Mr Mpania argued that this was disability discrimination.
The Employment Appeal Tribunal's Decision
The Employment Appeal Tribunal (EAT) found that Mr Mpania had not demonstrated that his health condition, which was identified as essential hypertension at the hearing, met the definition of disability as set out in the Equality Act 2010. It also considered whether, if Mr Mpania had been disabled, Angard had, or should have had, knowledge of this disability.
It weighed up the factors which pointed towards Angard knowing that Mr Mpania might have been disabled (his absences and a reference to a health condition) against those factors which militated against constructive knowledge (the information Mr Mpania had provided during his recruitment and the fact that he had worked night shifts in the past), held
Having done this it concluded that Angard did not have, and could not reasonably have been expected to have, knowledge that Mr Mpania was disabled under the Equality Act.