The Employment Appeal Tribunal (‘EAT) has considered in Francis Mutombo-Mpania –v- Angard Staffing Solutions Limited whether the Claimant, despite previously denying he had one, had provided evidence to show he suffered from a disability, and whether the Respondent was aware of the disability.
The Claimant had worked for the Respondent since 17 November 2015 carrying out shift work including night shifts. The Claimant failed to attend work in November and December 2016 and was informed by the Respondent that it no longer required him. The Claimant, who was unrepresented, issued a disability discrimination claim before the Employment Tribunal (‘ET’).
A preliminary hearing took place to establish whether the Claimant was a disabled person within the meaning of the Equality Act 2010. The ET considered the evidence that the Claimant had stated in his application form at the outset that he did not consider himself to have a disability. Further, the Claimant had previously disclosed to the Respondent that he was unable to work night shifts, and subsequently had been off work, because of his health condition of essential hypertension which had been diagnosed in 2011.
The Claimant appealed to the EAT stating that the ET had not taken into account his evidence that ‘he could only work night shifts with extreme difficulty due to his impairment of essential hypertension’. He also 'submitted that he had provided information to the Respondent about his health condition’ through emails. The Respondent argued that the ET was right in its conclusion as, based on the evidence, the Claimant had failed to provide medical evidence showing a disability. It further argued that it did not have constructive knowledge of the Claimant’s disability based on the information available. The Claimant had indicated on his application form that he was not disabled, did not require any adjustments and only told them that it was a health condition which prevented him working night shifts.
The EAT agreed with the ET’s decision that the Claimant had failed to provide evidence of his disability and how his normal day-to-day activities were affected. It concluded that the Respondent did not have constructive knowledge of the disability due to the information provided on the application form and the Claimant had worked night shifts for a year before raising the issue. Although the Claimant had later stated he had a health condition, this only put the Respondent on notice that further enquiries should be made but ‘a health condition was not the same thing as a disability in terms of the Equality Act’ for it to be said that the Respondent had constructive knowledge.
This case is a useful reminder showing how the burden of proof is on the employee to show that they have a disability under the Equality Act 2010 and that it must be proved that an employer had knowledge or constructive knowledge of it in order to be held liable for a disability discrimination claim. That said, employers should be careful of situations where they ought reasonably to be aware that an employee is disabled because of the information they already have.
By Emily Jones
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