can an employer unlawfully discriminate on the grounds of disability if there was no knowledge of that disability?
No, held the Employment Appeal Tribunal in Stott v Ralli Ltd, not in relation to a dismissal when the employer only acquired the knowledge of the disability at a later date.
Many people have invisible disabilities. These are wide-ranging in nature and include the whole spectrum of hidden mental health illnesses and conditions or involve hidden physical conditions such as diabetes and hypertension. Sometimes these are not obvious to bosses and colleagues.
In some ways, those with invisible disabilities have additional complex challenges in the workplace as the impact of their disability may not be obvious to an employer or colleague. Even when knowledge is there, the challenges faced by employees with invisible disabilities may not be understood. As we know, all too often that employee consequently faces challenges, discrimination, hostility and harassment at work.
The frequency of the calls we receive at didlaw from distressed clients is testament to the widespread level of this issue. One of the first questions we ask our clients is whether their employer has knowledge of the disability. This case highlights why this is important in the employment law context.
Ms Stott was a paralegal in a firm of solicitors who was dismissed during her probationary period for reasons relating to poor performance. After her dismissal she informed her former employer of her long-term anxiety and depression as she and lodged a grievance. Her former employer rejected her grievance and the subsequent appeal.
The Claimant could not present an employment tribunal claim for unfair dismissal because she did not have two years’ service. However, she did bring a claim for disability discrimination in terms of discrimination arising in consequence of her disability which resulted in her dismissal. This is captured by section 15 of the Equality Act 2010.
The EAT held that the Respondent did not have knowledge of the disability at the point of the dismissal and therefore the dismissal could not be discriminatory. The fact that they acquired knowledge after the dismissal was irrelevant as to the reasonableness of the dismissal. It should be noted that Ms Stott did not bring a claim about events following the dismissal, namely the handling of the grievance or the appeal. She may have succeeded in establishing discrimination if she had.
The decision is important on a number of levels but in particular it clarifies that if an employer did not know, and could not reasonably have been expected to know, of a person’s disability, they cannot be found to have unlawfully discriminated in relation to discrimination arising from a disability or indeed many other forms of disability discrimination. It will therefore be important for a Claimant to establish that the employer had actual or constructive knowledge.
The latter can be difficult to prove. It will boil down to whether the employer has information suggesting the individual “may” meet the statutory definition of disability. It should be noted here that establishing constructive (or imputed) knowledge is only relevant to certain Equality Act claims relating to the duty to make reasonable adjustments and section 15 claims.
One of my clients with a hidden disability recently described the daily challenges he faced in the workplace as akin to a mobility-impaired person having to drag themselves up and down 8 flights of stairs, without support. This is a good analogy and a reminder to us all about the hidden obstacles many face and the message to employers to reach out and start a conversation with any employee who appears to be struggling.
The full judgment of Stott v Ralli Ltd can be found here.
This blog is by Caroline Oliver, Senior Solicitor – didlaw.
