The EAT has upheld a decision that an employee was not disabled or, if he was, that his employer had no knowledge of any disability.

THE FACTS

Mr Seccombe was employed by Reed in Partnership Ltd as a supply chain manager. Around the time his employment began, he filled in an Equal Opportunities monitoring form, in which he responded “no” to questions asking if he had any health-related issues or impairment for which Reed might need to consider making adjustments. Mr Seccombe’s probation was extended; he complained of his “disgust” about this but did not suggest that his performance had been affected by any underlying health condition.

Mr Seccombe suffered a traumatic event about which he was extremely upset. This was followed by a period of ill health absence and unsuccessful attempts to return to work. He attended a meeting with a manager, who recommended he contact the employee helpline and offered to provide cover for him if he felt too ill. He was also given compassionate leave. During this time, he never suggested to his managers that he was suffering from an underlying health condition.

After Mr Seccombe had returned to work, having been certified as being fit to do so, he filled in a pro forma performance management document, in which he referred to his need for emotional recovery but did not mention any mental health impairment. Subsequently, he was dismissed summarily for poor performance. At the dismissal meeting, he was very upset, but did not assert that his performance had been affected by a mental health impairment.

Mr Seccombe claimed in the employment tribunal that he was suffering from severe anxiety and depression which constituted a disability, and that he had suffered disability discrimination.

The tribunal held that Mr Seccombe was not disabled or, in the alternative, that Reed did not know, and could not reasonably have been expected to know, that he was disabled.

Mr Seccombe appealed to the EAT, which dismissed his appeal.

In reaching their decisions, the tribunal and the EAT held that there was no evidence to support Mr Seccombe’s assertion that he was disabled. Ten years’ of GP’s medical notes did not reflect a diagnosis of severe anxiety and depression. The courts also considered the evidence around whether Reed should have known that Mr Seccombe had any disability. Although there had been previous instances of mental health impairment, these had been three years and ten years previously, prior to his employment with Reed, and did not suggest an impairment likely to have a long-term adverse effect. Mr Seccombe had not informed Reed about an underlying health condition in the monitoring form and he had never referred to an underlying medical condition when he had been talking about the traumatic event that had triggered his sickness absence. He had been certified as fit to return to work. He had engaged in frank and personal discussions with colleagues but had not, during these discussions, mentioned a mental impairment that might amount to a disability. Although he had suffered from severe distress preceding the termination of his employment, Reed had reasonably believed that this was in connection with the one-off traumatic event not an underlying mental health condition.

WHAT DOES THIS MEAN FOR EMPLOYERS?

It is not unusual for candidates or employees to withhold information about a mental health condition because they wish to maintain their privacy or are concerned that there may be an adverse reaction to their disability. Withholding information can be relevant (as it was in this case) to the question of whether the individual has a disability and whether the employer knew or should have known about the disability. However, it is not determinative, and employers must not assume that an employee does not have a disability just because they have not told the employer about it. Employers should be ready to ask questions about employees’ health if they think that there is a possibility of an underlying health condition that might have an impact on the employee’s working life.

Mr David Seccombe v Reed in Partnership Ltd: EA-2019-000478-OO (previously UKEAT/0213/20/OO)