What triggers knowledge of a disability?

Written by: Robin Pickard

Whether or not a person has a disability is often not obvious. Mental impairments (e.g., ADHD, depression and dyslexia) may be imperceptible in a way that other protected characteristics such as age, sex, and race are not. However, the UK’s legal regime does not necessarily require actual knowledge of a person’s disability before liability can be imposed for breaching requirements under the Equality Act 2010 (EqA). Employers may be found to have discriminated against an employee even if they have not subjectively realised that the individual in question is disabled, provided that the employer could reasonably have been expected to know that they were.

In this post, we focus on the circumstances in which an employer might be held to have constructive knowledge of a disability, and what are the reasonable steps for an employer to take to discover the nature of an employee’s condition. Specifically, we consider the relevance of diagnoses and occupational health (OH) reports, the effect of an employee who downplays their symptoms, and constructive knowledge in the context of employees who are on long-term sick leave.

How is disability defined?

The definition of disability is set out in section 6 and schedule 1 of the EqA. The core ingredients of a disability are that a person has:

1. a “physical or mental impairment”, which has;

2. a substantial and long-term adverse effect on;

3. his or her ability to carry out normal day-to-day activities.

“Substantial” means that the impairment must be more than minor or trivial (see section 212 EqA). And an impairment is “long-term” where it has lasted or is likely to last for 12 months or is likely to last for the rest of the Claimant’s life (see Schedule 1, paragraph 2 EqA).

The knowledge requirement

Various types of discrimination are predicated on an employer having knowledge of an individual’s disability. For example, where an Employment Tribunal (ET) is determining direct discrimination (under section 13 EqA), the discrimination needs to arise because of the disability. Therefore, an employer could argue that, if they were unaware of the Claimant’s disability, the less favourable treatment complained of was not “because of a protected characteristic”.

There is also an explicit defence to discrimination arising from disability (under section 15 EqA) where an employer is unaware, or could not reasonably have been expected to know, that a person had the disability. Section 15 EqA states that:

“(1) A person (A) discriminates against a disabled person (B) if – 

           (a) A treats B unfavourably because of something arising in consequence of B’s disability; and

           (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability”.

Before proceeding, let us consider the terms of ‘actual’ and ‘constructive’ knowledge. Actual knowledge denotes that the employer is aware of particular facts which underpin the legal definition of disability (i.e., the three aspects discussed above in the “How is disability defined?” section). Rimer LJ has made it clear that an employer does not need to know that an employee is legally disabled before they have actual or constructive knowledge: Gallop v Newport City Council [2014] IRLR 211, CA (para 36). It should be noted that, in a sense, actual knowledge is also constructive, as an employer need not be subjectively aware that the employee is legally disabled: their knowledge is constructed from being cognisant of the facts which speak to the legal definition of disability.

By contrast, constructive knowledge concerns the situation where an employer is aware of some facts (but not all the facts covering the three aspects that constitute disability) such that they could reasonably have been expected to know that the person had a disability. One important difference between actual and constructive knowledge is that an employer may be held to have constructive knowledge where they have failed to make reasonable enquiries into the person’s disability. However, the precise ambit of this obligation is unclear, despite the EHRC Employment Code stating that an employer must do all it can reasonably be expected to do to find out whether a person has a disability (para 5.15).

Relevance of diagnosis and OH reports

The first aspect of disability that an employer needs to be aware of is that the employee has a physical or mental impairment.

Cox v Essex County Fire and Rescue Service UKEAT 0162/13 demonstrates that self-diagnosis may be insufficient to trigger constructive knowledge and the importance of an employer asking itself “all the right questions”. In Cox, the employer was not held to have constructive knowledge of the employee’s disability, who had self-diagnosed himself as having bipolar disorder. There was no definitive diagnosis of an impairment at the point of dismissal. The employer had made enquiries into the employee’s disability by asking whether he was likely to be covered by the Disability Discrimination Act and asking OH to obtain a definitive medical opinion. In the event, the opinion was not forthcoming prior to the dismissal because the employee had said that no reports should be released. Even if the report had been released prior to dismissal, the employee’s psychiatrist had only said that bipolar disorder was “under consideration”.

Cox drew on the case of Wilcox v Birmingham Citizens Advice Bureau Services Ltd UKEAT/0293/10 in which Underhill P (as he then was) remarked that, while a definitive diagnosis of the putative disability is not required, a medical opinion might be necessary before actual or constructive knowledge is triggered. This is particularly so where the condition is ‘unusual’ (in Wilcox agoraphobia and travel anxiety) and where it is “not easy to disentangle the effects of any mental health condition from the effects of unhappiness about her working conditions more generally” (para 34).

Arguably, Cox placed undue emphasis on the importance of a definitive diagnosis. The employer knew that the employee had become more aggressive and knew that he considered his symptoms to be consistent with bipolar disorder. Perhaps this should have been sufficient to trigger knowledge of his disability. However, as the EAT decided, this was ultimately a question of the weight to attach to evidence. As the ET’s decision was not perverse, the EAT could not disturb their careful and fully reasoned decision.

By contrast to the foregoing, Jennings v Barts and the London NHS Trust EAT 0056/12 suggests that knowledge of symptoms might be more important than a specific diagnosis. In Jennings, the EAT held that the relabelling of a mental impairment (from PTSD to paranoid personality disorder and major depression) did not amount to a further diagnosis. It stated that “[I]f a wrong label is attached to a mental impairment a later re-labelling of that condition is not diagnosing a mental impairment for the first time” (see para 88). The key point was that the employer knew of the symptoms and had sufficient information before it to conclude that the employee was suffering from a mental impairment.

The cases of Gallop v Newport City Council [2014] IRLR 211, CA and Donelien v Liberata UK Limited [2018] IRLR 535 show the importance of OH reports. Firstly, Gallop illustrates the pitfalls of an employer rubber stamping an OH report which states that an employee is not disabled. Secondly, by contrast, Donelien shows the benefits of an employer carefully considering the findings of an OH report.

In Donelien, the Court of Appeal held that an employer did not have constructive knowledge of an employee’s disability and so had no obligation to make reasonable adjustments under sections 20-21 EqA. The employee worked as a court officer and, during her employment, she took a substantial period of sick absence. The employee said that her absence was due to stress, viral infections and high blood pressure (among other causes). However, OH’s view was that the employee was absent due to issues with management, not for medical reasons. Eventually, the employer initiated disciplinary proceedings against the employee, and she was dismissed.

Contrary to the earlier decision in Gallop, it was held in Donelien that the employer had carefully analysed the OH report and had attached appropriate weight to its conclusions. It was difficult for the employer to ascertain the true reasons for the employee’s absence. She had been uncooperative. In the light of it being difficult to know what the employee was unable to do because of her conditions, and that which she simply did not want to do, the employer was entitled to rely on the assessment of a medical adviser’s opinion. They therefore did not have constructive knowledge of the disability.

Downplayed symptoms/concealed disabilities

There are also cases in which employees downplay their symptoms or conceal their disability. In McMahon v Rothwell & Evans LLP and another ET/2410998/19, the employee was dismissed for timekeeping issues, extended breaks, and absences. The employee said that these issues arose because of her menopause symptoms. Although the ET held that the employee had a disability, it found that the employer did not have actual or constructive knowledge at the material time because the employee had downplayed her symptoms. The employer therefore was unlikely to know that her physical impairment had a substantial impact on her day-to-day activities.

In A Ltd v Z UKEAT/273/18, an employee did not reveal to their employer that the reason for their health-related absences was due to their mental and psychiatric impairment, including stress, depression, and schizophrenia. The EAT overturned the ET’s determination in which it had held that it would have been reasonable for the employer to make further enquiries. The issue with this approach, as the EAT expounded, is that it failed to consider what the likely results of any further enquiries might be. In fact, the ET’s further findings relevant to loss found that had the employer made the further enquiries, it still would not have known of the employee’s disability because she would have continued to hide the true facts of her mental health condition. Accordingly, the EAT found that there could be no constructive knowledge of disability.

A Ltd underscores that a failure to make reasonable enquiries is not synonymous with constructive knowledge. It is about what further facts would arise because of those enquiries. This is ultimately a speculative exercise, and one suspects that the EAT and Court of Appeal would be slow to interfere with the ET’s findings as to what further facts might have arisen had reasonable enquiries been made. A Ltd also emphasised that it is not incumbent upon an employer to make every enquiry into a putative disability where there is little or no basis for doing so.

Long-term sick absence

Discrimination arising from disability (under section 15 EqA) may occur in cases where an employee is dismissed while on long-term sick leave, where the long-term absence is “in consequence” of their disability. It might reach the point at which the employee’s absence has such a detrimental effect on the organisation (e.g., on its resources, other employees etc.) that the employer is entitled to dismiss on the ground of capability. These cases will often turn on justification, i.e., was the dismissal proportionate?

In terms of knowledge, it has been confirmed that the employer need only have actual or constructive knowledge of the disability, they do not also need to be aware that the long-term sick absence arose in consequence of disability: City of York Council v Grosset [2018] EWCA Civ 1105 (see paras 39-45). HHJ Eady QC confirmed this in A Ltd v Z [2020] IRLR 952 and summarised further relevant principles relating to the knowledge requirement (see paras 20(1)-(7)). She stated that the employer must show it would be unreasonable for it to be expected to know that a person: “(a) suffered an impediment to his physical or mental health, or (b) that that impairment had a substantial and (c) long-term effect …”. This suggests that the ET should adopt a structured approach to determining knowledge by addressing each of the constitutive elements that an employer must be aware of.

To bring these principles to life, let us suppose that an employee is dismissed while on long-term sick leave, and that the absence arose because of the employee’s disability (here, depression). Let us further suppose that the employer accepts that the employee is disabled because of depression but does not concede that they had actual or constructive knowledge of the disability at the time of dismissal. This begs the question: what facts does the employer need to have access to before they have actual or constructive knowledge of the employee’s disability?

Firstly, it should be noted that long-term sickness is not by itself a proxy for disability. Indeed, HHJ Auerbach stated in Pranczk v Hampshire County Council UKEAT/0272/19/VP that (para 62):

“Some long-term sickness, or related absence, is caused by disability, and some isn’t … Of course, the idea that a long-term sickness, or a related absence, may reflect the fact that the individual has what amounts to a disability, is not hard to grasp …. But it is also perfectly possible that someone who is complaining about treatment in connection with long-term sickness absence does not consider themselves to be disabled.”

A logical consequence of this is that if an employer is only aware of a staff member’s long-term absence, this will be insufficient to trigger actual or constructive knowledge. An employee would also need to provide details to their employer about:

(a) the nature of their physical or mental impairment (bearing in mind that self-diagnosis may be insufficient);

(b) whether the condition has a substantial impact on their ability to carry out normal day-to-day activities; and

(c) whether they consider/have been advised by medical professionals that their condition is likely to have a long-term effect.

The employer may have knowledge of item (a) where GP fit notes and/or OH reports comment on the employee’s physical or mental impairment. Depending on the condition (i.e., whether it is unusual or not), the employer is likely to have actual knowledge of the impairment via medical opinion, or at least be required to make further reasonable enquiries to discover the nature of it.

Considering item (b), while long-term absence is not a proxy for disability Pnaiser v NHS England and another [2016] IRLR 170 illustrates that such absences may imply that an employee’s day-to-day activities have been substantially impacted. Simler J (as she then was) stated, at para 72, that (emphasis added):

“The question what a respondent knew or should reasonably have been expected to know is one for the factual assessment of a tribunal. Here, the tribunal made findings about the reference given to Prof Rashid by Dr Fleming (paragraphs 54 and 67). This referred to two surgical procedures which were the cause of two periods of absence during the 12 months of her employment ending in June 2010. Ms Tennant referred to significant absence in the period to May 2012. If linked, these facts could lead to the conclusion that the claimant had a physical condition that had substantial, long term adverse effects on her day-to-day activities because it required two surgical interventions and caused her to have significant absences from work (consistent with not being able to perform normal day-to-day activities) over a period longer than 12 months …”

This shows that knowledge may be triggered where the employer is aware of (a) an employee’s physical or mental condition, (b) that this has continued for 12 months, and (c) that they have had significant absences from work (which, in this context, is consistent with a substantial impact on day-to-day activities).

Perhaps the most problematic of the above requirements is item (c), in circumstances where the mental or physical condition has not yet lasted 12 months and the Claimant asserts that it is likely to continue for at least 12 months (per schedule 1, para 2 EqA). This is predictive in nature and not necessarily something that an employee (or GP fit notes) would comment on. The question therefore arises: which facts is an employer required to have knowledge of before constructive knowledge of the ‘long-term’ requirement is satisfied?

The Guidance under the EqA would suggest that there is a relatively low threshold for actual/constructive knowledge of the long-term requirement. Paragraph C3 states (emphasis added):

“The meaning of “likely” is relevant when determining whether an impairment has a long-term effect (Sch 1, Para 2(1)), … In this context, “likely”, should be interpreted as meaning that it could well happen, rather than it is more probable than not that it will happen.”

In McDougall v Richmond Adult Community College [2008] ICR 431 Rimer LJ held that it is necessary to decide whether the definition of disability is met at the time of the alleged discrimination. This reasoning was adopted by Lewis LJ in All Answers v W [2021] IRLR 612. He stated that the fact that there is a recurrence, or that the condition persists for 12 months, is irrelevant for determining whether the condition was ‘likely’ to do so at the time that the discrimination occurred. At one level, this makes sense: the mere fact of winning the lottery does not mean that there was a greater chance of winning at the point at which you purchased a ticket. Yet, at another level, one wonders if the same logical approach necessarily applies to the messy world of medical diagnosis, where the fact that a condition has lasted for more than 12 months might itself indicate what the severity of the condition was at a historic point in time.

Overall, an employer is more likely to have knowledge of the long-term requirement where an employee has been absent from work for an extended period of time at the point at which the alleged discrimination occurred; the employer knows that the condition has a substantial impact on the employee’s day-to-day activities; and there is medical evidence that suggests that there is no predicted improvement to the employee’s condition.

What to take away

The cases canvassed show that actual and constructive knowledge are thorny issues. Employers need to carefully consider whether an employee has a disability. If an employee’s medical condition is not readily apparent, then an employer will need to assess whether they should seek a medical opinion to investigate the situation further. As we have seen, a diagnosis is relevant to determining whether the employer has actual knowledge of the physical or mental impairment.

If the employee does not have an obvious impairment, then an employer might consider that a definitive diagnosis would be a disadvantage as it would provide them with knowledge of the employee’s condition. Their defence on the grounds of a lack of knowledge would cease to apply. Alternatively, if there are clear signs that an employee’s behaviour has suddenly changed, that might place the employer under an obligation to make further reasonable enquiries. In these circumstances, the employer might be attributed with constructive knowledge (provided that the reasonable enquiries would supply the employer with the relevant facts). If an employer has reasonable grounds for suspecting that an employee may be disabled, then confirming the position via a medical opinion could be beneficial, as it would enable the employer to adopt the correct legal process and have regard to relevant considerations, e.g., around dismissal. The decision to make further enquiries is likely to be highly fact-sensitive and could well be finely balanced.

Employees who are dismissed while on long-term sick leave may be able to claim that they have been discriminated against because of something arising in consequence of their disability (under section 15 EqA). Employers should be alive to whether employees on long-term sick absence are disabled. They will not necessarily be disabled because they are on long-term sick leave. However, if an employee has been absent for more than 12 months and has supplied information pertaining to their mental or physical impairment, then an employer should at the least make further reasonable enquiries as they might have already reached the point of having actual knowledge of the employee’s disability.