No deemed knowledge of disability as employee hid mental ill-health

An employment tribunal should not have ruled that an employer ought to have known of an employee’s disability as she had deliberately hidden her mental ill-health.

Why did the Employee hide the true reason for absences?

Z had a poor absence record in her previous job. On starting a new job, her employer asked her to explain this. She said it was due to knee surgery and back and neck injuries following a car accident. She deliberately did not mention her psychiatric conditions. She also signed a form confirming she did not have a physical or mental impairment which had a substantial and long-term adverse effect on her ability to carry out normal day to day activities.  

During 14 months’ employment she had 85 days unscheduled absence. 52 days were recorded as sickness absence which she put down to physical ailments. On 12 February 2017 she was signed off work with low mood. She told her employer she was depressed due to problems with her son. She did not refer to any mental health condition and instead listed physical ailments she suffered from. She was hospitalised for psychiatric care for a couple of weeks at the start of March but did not tell her employer. In subsequent emails she continued to provide information about various physical ailments but did not mention any mental health problem. However, a GP certificate dated late March mentioned mental health and joint issues and signed her off work for three weeks.   

When she returned to work she was slightly late and her employer dismissed her for poor attendance and poor timekeeping. 

She claimed disability discrimination. 

What did the employment tribunal rule in this case?

Her employer admitted she was disabled because of her mental impairments but said it did not know this. The employment tribunal agreed but ruled that it ought to have known. By the time of dismissal it had received two GP certificates and a hospital certificate which showed a significant deterioration in her mental state. It ought to have enquired further into her mental wellbeing and its failure to do so meant it could not argue it did not know she was disabled. 

The employer appealed to the Employment Appeal Tribunal (EAT).        

How did the EAT rule? 

The EAT ruled that the employment tribunal had been wrong to find that the employer ought to have known Z was disabled. Whilst it was correct to say that the employer ought to have made further enquiries, it should then have gone on to ask itself what the employer would have found out as a result. The tribunal had found that Z would have continued to suppress information about her mental health problems, would have insisted that she was able to work normally and would have refused to go to occupational health or have a medical examination. Therefore if it had made further enquiries it still would not have known she was disabled.   

What are the implications of this case for employers and employees. 

Although the EAT found that the employer could not reasonably have been expected to know of the employee’s disability, this is mainly due to the tribunal’s finding that the employee would have refused an occupational health referral or other medical examination had the employer requested it. Employers who receive medical information suggesting that an employee may be suffering some form of mental ill-health should seek to obtain further information. This could be from the employee’s GP or via a referral to occupational health or a specialist. If the employee then refuses to cooperate, the employer will have good grounds for arguing that it did not know and could not reasonably have been expected to know that the employee was disabled.  

A Ltd v Z