Actual and Constructive Knowledge

As already previously outlined from Section 15 of the Equality Act, discrimination arising from disability is unlawful. Actual knowledge of a disability is obvious; however, constructive knowledge is similar to assumed knowledge.

Subsection 2 of section 15 goes on to state, “subsection (1) does not apply if A [e.g. employer] shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

A Ltd v Z (2019) outlines the case of a lady (Z) who had faced a number of difficult circumstances which culminated in stress and absence at work. Z was later dismissed and then disclosed further significant mental health problems held to be a disability. The ET concluded that A Ltd could have made further enquiries of Z to establish more information. A Ltd appealed and an EAT concluded that even if this had happened and even with an OH referral, Z “would have continued to suppress information concerning her mental health and…would not have entertained any proposal for an [assessment] that might have exposed her medical history, Therefore the EAT concluded that A Ltd could not have reasonably known of Z’s disability”.

Another important case here is Donelien v Liberata UK Ltd (2018). In this case, Donelien was dismissed and despite a GP report and OH physician involvement, the problems known were “managerial not medical”. Lord Underhill gave the following conclusion:

“[Donelien’s] next point is that the [Liberata] must, or certainly should, have known that she was suffering from a disability because since the autumn of 2008 her manager had allowed her to start late because she complained of tiredness in the morning. But making a change of that kind in an employee's working hours does not necessarily imply any knowledge of an impairment sufficiently substantial to constitute a disability. And in any event the unchallenged finding of Judge Balogun is that the Appellant was not disabled at that time…[Liberata] was presented with a good deal of not very clear information, and getting a good understanding of it was not helped by the [Donelien’s] rather uncooperative and confrontational stance. The EAT also endorsed a submission…that not all of the [Donelien’s] absences reflected her being truly unable to work: there was an element of unwillingness too, mixed in with her substantive complaints about pay and working conditions. As it observed, the ET had to disentangle what the [Donelien] could not do from what she would not do. This is not an easy exercise: employers are not doctors, or psychologists.”



Conclusion

Therefore, the main legislation governing the extent of what employers should accommodate in the workplace for workers with a disability is The Equality Act 2010. The legislation exists to protect the welfare of disabled individuals and prevent disadvantage in the workplace. It does this by making employers have a duty of care to make reasonable adjustments for disabled employees to remove such a disadvantage.