Establishing disability discrimination: Evidence and knowledge

In the recent case of Mutombo-Mpania v Angard Staffing Solutions Ltd, the Employment Appeal Tribunal (EAT) offered answers to the following two questions:

1. Can an employee prove disability without leading evidence on the impact of his impairment on normal day to day activities?
2. Does an employer have constructive knowledge of an employee’s disability if the employee has denied having one?

In this case the EAT held that the answer to both of these questions was no.

The background

The Claimant, Mr Mutombo-Mpania worked for Angard Staffing Solutions, which provides casual staff to Royal Mail Group. However, on his application form for employment with Angard, Mr Mutombo-Mpania did not indicate that he had a disability. He also failed to disclose a disability on the company’s health form.

Mr Mutombo-Mpania worked for approximately one year, mainly on late shifts finishing at 10pm, when he was then offered eight weeks of night shift over the Christmas period. This was accepted by Mr Mutombo-Mpania. However before he began this period of night shift work, Mr Mutombo-Mpania had sent an email to his employer informing them that his “health condition” would prevent him from working regular night shifts and that he would prefer to be placed on shifts ending at 10pm. This email did not provide any specifics as to what this health condition was.

Mr Mutombo-Mpania then did not appear for four out of the eight night shifts which he had agreed to undertake. These absences resulted in Royal Mail informing Angard that they did not want Mr Mutombo-Mpania to return to work for them and his employment was terminated. Mr Mutombo-Mpania then made a disability discrimination claim against his former employer.

The law

Section 6 of the Equality Act 2010 is the foundation for a disability discrimination claim, as it sets out the legal classification of disability. It provides that a person has a disability if they have a physical or mental impairment, which has a substantial and long term adverse effect in their ability to carry out normal day to day activities. Consequently, to bring a successful claim, a claimant must lead evidence before the tribunal which demonstrates not only that they have such an impairment, but the functional impact of their impairment on their ability to carry out normal day to day activities.

In addition an employer cannot be liable for most – but not all – forms of disability discrimination unless it knew, or should have known, about the individual’s disability.

The decision

On the first question, it was held by the EAT that Mr Mutombo-Mpania had not presented sufficient evidence to establish that he was a disabled person within the Section 6 of the Equality Act 2010 definition. At the tribunal, Mr Mutombo-Mpania produced only some medical evidence to confirm that he took daily medication for the condition of Essential Hypertension.

No evidence was led in relation to the impact of this condition on day to day activities. Without this,  Mr Mutombo-Mpania had not discharged the burden of proof upon him to offer him protection under the Equality Act.

On the second question, regarding the issue of employer knowledge, the EAT held that even if the employee’s absence and a vague reference to a “health condition” might be enough to put them on notice to make further enquiries into the matter, it was not sufficient to infer constructive knowledge. This is because the employee had worked late shifts before and had not intimated he had a disability, notwithstanding he had an opportunity to do so.

Comment

This case is a useful reminder in a number of ways, initially in relation to confirming the requirements of the evidence that must be led by an individual hoping to establish disability status before an employment tribunal.  Secondly, it gives a degree of reassurance to employers that constructive knowledge of a disability is not automatic when an unspecified “health condition” is relied upon for absence. However, the note of caution must be that both the tribunal and the EAT commented that a reasonable employer – in similar circumstances – may be expected to do something with such information. In this case, the limited information did not amount to constructive knowledge, but had the claimant offered more contemporaneous detail or explanation of his condition, the outcome may have been different (albeit this was a point that did not require to be decided, given the claimant’s condition was held not to be a disability in any event).

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We are experienced in advising employers in respect of all aspects the Equality Act 2010, whether disability or any of the other protected characteristics. Please contact a member of the team if you have any queries.