Disability related discrimination – section 15(2) – knowledge; section 15(1)(b) – justification; loss and mitigation; compensation
It was accepted that the Claimant was a disabled person for the purposes of the Equality Act 2010 – by reason of the fact she suffered from mental and psychiatric impairments, namely stress, depression, low mood and schizophrenia – but she had not disclosed these conditions to the Respondent and had given alternative reasons for health-related absences during her employment. The ET accepted that the Respondent had no actual knowledge of the Claimant’s disability but found it should have made more enquiries into the position and that it therefore had constructive knowledge for the purposes of section 15(2) Equality Act.
The Respondent had dismissed the Claimant because of her poor attendance and time-keeping. The first reason related to something arising from her disability; the second did not. The Respondent was able to demonstrate that it had a legitimate aim – in that it needed a dependable person in the Claimant’s post – but, the ET concluded, given the intemperate and precipitate nature of the decision-making process, the Respondent could not show its summary dismissal of the Claimant was a reasonably necessary means of achieving that aim. It therefore upheld the Claimant’s complaint of unlawful disability discrimination under section 15 EqA.
Going on to consider remedy, the ET sought to apply the guidance in Abbey National plc v Chagger [2010] ICR 397, finding that – had the Respondent made further enquiries – the Claimant would have continued to hide her mental health problems and would have refused to engage with any occupational health or other medical referral that might disclose her history. That being so, the ET found that there would then have been a 50% chance that the Claimant would have been the subject of a non-discriminatory dismissal and that, in any event, her employment would have ended before she had reached two years’ service. Allowing that the Claimant’s poor time-keeping had also fed into the decision to dismiss, the ET considered that this should result in a 20% reduction in her compensation for contributory fault.
The Respondent appealed against each of these findings.
Held: allowing the appeal in part
On the question of constructive knowledge, the ET had focused on what it considered might have been the further steps the Respondent could reasonably have been expected to take; it had failed, however, to ask itself whether the Respondent could then have reasonably have been expected to know of the Claimant’s disability. Its further findings relevant to loss answered that question: had the Respondent made the further enquiries the ET considered might have been expected, it would still not have known of the Claimant’s disability because she would have continued to hide the true facts of her mental health condition. That being so, the answer for section 15(2) purposes was that the Respondent neither knew, nor could reasonably have been expected to know, of the Claimant’s disability. The Respondent’s appeal was allowed on this basis.
As for justification, the question for the ET was whether the Respondent had made good its justification of the Claimant’s dismissal. The ET’s reasoning went to the question whether the summary nature of the dismissal was justified but did not fully engage with the issue of the dismissal more generally. Doing so, the ET would have needed to take into account the business needs of the employer (Hensman v MoD UKEAT/0067/14 applied) but its reasoning did not demonstrate that it had. Had it been necessary to determine this point, the Respondent’s appeal on this ground would also have been allowed.
On the question of loss, in the circumstances of this case, the ET had permissibly taken account of the other, non-discriminatory reason for the Claimant’s dismissal (her poor time-keeping) when assessing contributory fault. Ultimately the Respondent’s appeal against the ET’s findings on loss amounted to perversity challenges and did not meet the high threshold required. If the challenges to the ET’s liability findings had not been upheld, the Respondent’s appeal on the question of loss would not have been successful.
Citations:
[2019] UKEAT 0273 – 18 – 2803
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 14 July 2022; Ref: scu.639324