A Ltd v Z UKEAT/0273/18
Z was employed by A Ltd as a part-time finance co-ordinator. She was dismissed because of poor attendance and timekeeping issues, and brought an employment tribunal (ET) claim for discrimination arising from disability. The parties agreed that Z was disabled for the purposes of the Equality Act 2010 because she suffered from stress, depression, low mood and schizophrenia. However, she had failed to disclose these impairments to A Ltd. She had attributed her numerous sickness absences (including a two week stay in hospital) to physical ailments and made no mention of her mental health conditions.
The Employment Appeal Tribunal (EAT) found that A Ltd did not have constructive knowledge of Z's disability; it could not reasonably have known about Z's disability so her claim could not succeed. The ET had found that Z would have continued to suppress information about her mental health problems and would have refused an occupational health referral. Therefore even if A could reasonably have been expected to do more to find out about Z's health, it could not reasonably have been expected to know about her disability.
This is a sensible decision. The EAT referred to the EHRC Code, which provides that it is not enough for the employer to show that they did not know the employee was disabled. They must also show that they could not reasonably have been expected to know about it. They therefore have to do all they can reasonably be expected to do to find out if a worker has a disability. Where an employee is determined to conceal a disability, it is very difficult for an employer to find out about it.