No, held the EAT in the recent case of Seccombe v Reed.
The Claimant worked for Reed between 2016 and 2018. He experienced two bouts of anxiety and depression which pre-dated his employment with Reed (2008 and 2015) and one which occurred as a result of a traumatic event during his employment. After a period of certified absence following this event, and subsequent to his return to work, he was dismissed on performance grounds.
Not having the required service length for an unfair Dismissal claim, he brought a claim at the Employment Tribunal for disability discrimination. His employer argued he wasn’t disabled because his impairment wasn’t long term and even if he was found to be disabled, they had no knowledge of his disability.
The Tribunal agreed with the employer, saying the medical evidence presented by the Claimant did not support his claim that the impairment had a ‘long term’ effect, thus he failed to meet the criteria for disability as defined in EqA 2010. The episodes of anxiety and depression which occurred in 2008 and 2015 were found to be short, isolated episodes and the same could be said about the depression he experienced while working for Reed, because he was certified as fit for work following the incident and returned.
Further, various discussions took place between the Claimant and his employer around his absence and at no point did the Claimant mention his disabilities. Therefore, the Tribunal found the employer didn’t have knowledge of the disability at the material time.
Mr Seccombe appealed to the EAT on the grounds that the tribunal had erred in law by, in its appraisal of disability, taking into account the Claimant’s failure to inform colleagues of his impairment.
The EAT dismissed his appeal, stating that while the employer’s knowledge is indeed irrelevant to the question of whether a person is disabled:
‘That does not mean that what a person says, or does not say, about their abilities is irrelevant to the objective question of whether, at the time in question, the person was disabled… What is important is what the person says, rather than to whom it is said… the fact that a claimant told friends or an employer that he was continuing to be affected by the condition could be relevant. Similarly, it could be relevant that a claimant did not tell people that an impairment was continuing to have an effect.’
The case will make for reassuring reading for employers in that it is clear tribunals will be objective in their analysis of whether an employer knew, or ought reasonably to have known, about an employee’s disability. However employers should be proactive when it comes to shedding light on employee’s potential disabilities as this will benefit them if a claim develops.
This blog was written by Jack Dooley, Paralegal.
