Whether an employer has knowledge of a disability is one of the gateways to protection from disability discrimination. In this case the EAT upheld a tribunal decision that the employer did not have knowledge from the behaviours the job applicant displayed when he was previously employed by the Respondent.
Facts
Mr Godfrey was diagnosed with Asperger’s syndrome in 2018. He had previously been employed by NatWest from 2006-2011. He sought to bring a claim of disability discrimination against NatWest arising from their alleged refusals to appoint him, or allow him the opportunity to be considered for appointment, to various vacancies. He argued that NatWest had knowledge of his condition by reference to the way it had manifested itself before he received a diagnosis. He argued that NatWest had been aware of the relevant facts of his disability due to its experience of his behaviours when it had previously employed him. Although this was before his diagnosis Mr Godfrey contended that those who worked with him would have been fully aware that he "would not engage in conversation or social interactions in the same way as others and his need for quiet and space" on a daily basis. In defending the claim NatWest argued that it did not know, and could not reasonably have been expected to know, of Mr Godfrey's disability.
Mr Godfrey's argument that NatWest had either actual or constructive knowledge of his disability was unsuccessful. A three-member tribunal panel unanimously held that NatWest had no actual knowledge of his disability. By a majority, (ie. two of the three members making the decision) it also found that there was nothing that would reasonably have put NatWest on notice of the disability. The majority also found that Mr Godfrey would not have co-operated with any attempt to investigate matters further; and therefore the majority further concluded that NatWest did not have constructive knowledge of Mr Godfrey's disability. Mr Godfrey appealed to the EAT on the basis that the tribunal had failed to apply the correct legal test: focusing on the particular diagnosis of his disability rather than the question of the employer's knowledge (actual or constructive) of the relevant factual constituents of that disability.
The EAT dismissed Mr Godfrey's appeal. In coming to this decision it was important that:
- There was limited evidence of any behaviours by Mr Godfrey that would have alerted NatWest to the relevant factual constituents of his disability during his earlier employment.
- The ET had correctly directed itself to the relevant legal test and had permissibly (unanimously) concluded that NatWest did not have actual knowledge that Mr Godfrey had an impairment which amounted to a disability.
- In considering constructive knowledge, and what NatWest might reasonably have known about Mr Godfrey's condition, the ET's question of whether NatWest had reasonably been put on notice of the need to further investigate whether Mr Godfrey suffered from an autistic spectrum disorder condition, was unsafe. The correct question was whether NatWest might reasonably have been aware of the need to make enquiry as to more generally as to the possible effects of a general mental health impairment.
- However, the majority of the ET had also gone on to consider what would have happened had NatWest made further enquiries, and found that Mr Godfrey would have refused any assessment. Therefore, the tribunal had been entitled to conclude that NatWest had demonstrated that it had neither actual nor constructive knowledge of the relevant facts of the disability.
What this means for employers
This case is not the first to explore whether an employer has constructive knowledge of disability before a formal diagnosis is received. The case is a useful one for employers because, while it remains the case that employers cannot ignore behaviour which may suggest an employee has a disability, it is clear that when considering constructive knowledge of a disability there is no need for employers to ask themselves whether an employee might be showing behaviours related to a specific condition. Taking steps to assess the situation is what counts, unless, as in this case, there is evidence to suggest that would prove futile.
There is already case law which sets out that an employer will not have constructive knowledge of an employee's disability where the employee hides their disability and would have continued to do so on further inquiry. This case builds on that useful principle.
