When does an employer know they have a duty to make reasonable adjustments in the workplace to assist a disabled person with their ability to work? Are they aware of the employee’s disability? Should they know? Sometimes it is obvious, other times – less so.

…a physical or mental impairment, which has a substantial or long-term adverse effect on the person’s ability to carry out day-to-day activities.

S6 Equality Act 2010

This was the issue the Employment Appeal Tribunal (EAT)  had to deal with in the case of Seccombe v Reed in Partnership [2021]

What was the case about?

Mr Seccombe was a Supply Chain Manager at Reed in Partnership (“Reed”) until he was summarily dismissed during his probation period in 2018. Mr Seccombe claimed he had suffered from various disabilities since 2007. He had medical notes citing depression in 2007, a spinal surgery in 2008 and incidents of chest pain and anxiety in 2015. These all preceded his start with Reed in 2017. Mr Seccombe did not refer to his disability when asked about it on a disability questionnaire.

Reed had issues with Mr Seccombe’s performance and extended his probation to deal with their concerns. In December 2017, Mr Seccombe suffered what the judgment referred to as “a traumatic event”. This upset Mr Seccombe and caused a period of ill health and some absences from work.

Mr Seccombe returned to work from 19 February 2018, but remained under performance review. He was dismissed on 28 March 2018 on grounds of poor performance. The day before, he had completed a form saying that the issues arising from the traumatic event were ongoing, but again, there was no  mention of a  disability.

Mr Seccombe issued a claim in the Employment Tribunal.

What did the Tribunal decide?

Mr Seccombe claimed he was discriminated against and  dismissed as he suffered from anxiety and depression, which he alleged were disabilities.

The Tribunal found the Claimant had never been diagnosed with “severe anxiety and depression” and the medical evidence did not support the Claimant’s claim that his impairment had continued to have a substantial adverse effect over a number of years.

The Tribunal accepted the evidence that  the Claimant did not display or tell colleagues  of any alleged underlying mental impairment or related difficulties.

The Tribunal went on to find that even if it were wrong about disability, the Respondent did not have actual or constructive knowledge of the disability at the relevant time.

The Claimant never argued the possibility of a mental impairment or disability during his employment. It was reasonable for the Respondent to assume the matter was a one-off event which had effectively been resolved.

His claim was dismissed. He appealed to the EAT – that he was disabled and that his employer should have known.

What did the Employment Appeal Tribunal decide?

The EAT considered that the Tribunal had accepted that Mr Seccombe was suffering from adverse effects on his ability to conduct day-to-day activities from late 2017 to early 2018, and Reed were aware of this. However, they went on to decide that Reed were entitled to consider that he had recovered following his return in February 2018, and that they did not know, nor could they reasonably be expected to know, that the effects were long-term.

His appeals were dismissed.

What can be learned from the case?

As well as having an impairment that may qualify as a disability, an employee must show that their employer knew about the disability (actual knowledge), or could reasonably have been expected to know (constructive knowledge).

Whether an employer will have actual or constructive knowledge of someone else’s disability will always be a challenge for employers. Employers are not entitled to ignore issues of which they are aware to avoid having knowledge.

Only once an employer has actual or constructive knowledge of a disability do the other obligations, such as the duty to make reasonable adjustments arise.

You can read the full judgment here.

24th September 2021

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