I gave a talk last week on constructive knowledge of disability, i.e. the point where the employer didn’t actually know its employee was disabled, but is nonetheless held liable because on the facts it ought to have done.

The question arises in relation to sections 20 and 15 Equality Act, the obligation to make reasonable adjustments and unjustified less favourable treatment on the grounds of something arising out of a disability. In both cases the employer is on the hook if it either knew or ought to have known that the employee was disabled.

In fact, it is not quite so simple – the Equality and Human Rights Commission Code states that where it doesn’t know, an employer must do “all it can reasonably be expected to do” to find out, including proactively enquiring of the employee where there are signs that something is amiss. The EHRC Code gives the example of an employee in a call centre who sits at her desk crying. I think we have all been there, but should the employer now ask if something is wrong? It could just be a family or boyfriend issue, but equally it could be depression. The Code states that the employer is “likely” to be under a duty to ask. I think that it would have to take more than one incident of tearfulness within a reasonably short space of time to create any obligation of enquiry on its part, especially in a call centre.

My talk touched on what awareness the employer is deemed to obtain from whether and how the employee himself refers to his illness. In DWP -v- Hall in 2005, the employee did not disclose her psychiatric condition on joining, but the DWP was later saddled with constructive knowledge of that disability, in part because she had refused it permission to contact her doctor in the recruitment paperwork and it should have guessed from that and other conduct that there was a health problem. By contrast, in Donelien -v- Liberata in 2018, it was found that the employer could reasonably be unaware of the employee’s disability because she had persistently (but untruthfully) denied it, and had obstructed the employer’s attempts to access medical records on her. In Toy -v- Leicestershire Police the year before that, the tribunal declined to credit the employer with constructive knowledge of a disability where, even though the employee did expressly refer to his probably suffering from dyslexia, he gave no other signs or explanations of it.

Within hours of my closing, the EAT issued its latest decision on this point, A Limited -v- Z (the anonymity stemming from the sensitive nature of Z’s disability). This took the question of constructive knowledge to the next stage, into the brain-aching domain of hypothetical constructive knowledge – not the knowledge which an employer would have had if it had asked further questions of the employee, but what it would not have known if the employee didn’t answer questions which it didn’t ask. Do keep up.

Z had a long and varied history of mental health issues – depression, paranoid schizophrenia, self-harm and cannabis abuse (one of the medical certificates referred to “joint issues”, but I think this was unrelated). Although on joining Z had expressly denied that she had any disability, just 14 months into her employment she had had 85 days’ unscheduled absence of which over 50 were sick leave. It was not that the employer had not asked Z about her condition, but that each time it had done so she had fobbed it off with stories of recurrent but minor physical ailments in place of her actually quite serious mental health issues. Eventually she was dismissed for her attendance record and general unreliability, and sued.

A Limited was found by the Employment Tribunal not to have asked enough questions of her to get to the bottom of her health issues. On that basis it was deemed to have had constructive knowledge of her disability and on that basis in turn to have discriminated against her under section 15 Equality Act. On appeal, the EAT thought it unfair to saddle A Limited with that liability in circumstances where all the evidence was that even if it had asked those questions, Z would not have answered them truthfully, so it would still not have had the requisite knowledge of her disability.

The EAT noted that employees with certain physical or mental health issues might understandably seek to conceal these from their employer out of embarrassment or anxiety over how others would see them. It made no real criticism of Z for that as such, noting merely that the price of that concealment is a much smaller chance that the employer will have actual or constructive knowledge of the disability, or therefore be under any obligation to do anything about it. Z was not dismissed for her serial deception of the employer but it is mildly interesting to consider what her claim might have been if she were – I suppose that the employee would need to establish both that the deception was a medical consequence of the disability (I cannot see embarrassment alone being enough) and that in those circumstances the employer should be willing to be lied to. A pretty tough gig, one might imagine.