Employment Review: Should knowledge regarding the Claimant’s disability known by occupational health be imputed to the dismissing officer?
Direct disability discrimination occurs where, because of disability, a person (A) treats another (B) less favourably than A treats or would treat others (section 13(1), Equality Act 2010).
A claim for direct disability discrimination can only succeed if A has actual or constructive knowledge of the employee’s disability at the relevant time, as the disability must form part of A’s “conscious or subconscious reason” for the less favourable treatment.
One of the questions which arose for consideration in this case was whether, in relation to the Claimant’s direct discrimination claim, knowledge of his disability could be imputed to the decision-maker (Mr Davison) who dismissed the Claimant (and so to the Respondent) in circumstances where some of the employer’s team knew of his disability, but the decision-maker did not.
The Claimant was employed by Newport City Council (NCC). He had complained of stress and was absent from the workplace for various periods between 2004 and 2008. The Claimant’s GP had diagnosed him with depression caused by workplace stress. NCC also referred the Claimant to Occupational Health (OH). OH informed NCC’s HR Department that the Claimant had some ‘stress related symptoms’ but that there were no signs of clinical depression. When the Claimant returned to work in 2008 following a period of sick leave, Mr Davison (disciplining officer) dismissed him following allegations of misconduct. The Claimant brought claims for unfair dismissal and disability discrimination. His unfair dismissal claim was upheld but his discrimination claim was dismissed (though the Tribunal found that he was a disabled person).
The EAT dismissed the Claimant’s appeal and held that the employer did NOT have the requisite knowledge for the purposes of a direct discrimination claim.
Following the guidance of the CoA in CLFIS (UK) Ltd v Reynolds (http://www.freeths.co.uk/publications/employment-review-july-14), the EAT held that when determining whether direct discrimination has occurred, the tribunal should focus on the state of mind of Mr Davison, the person solely responsible for taking the decision to dismiss, and that there was no room for imputed knowledge in this context.
When deciding whether or not there has been discrimination by a sole decision maker, a Tribunal is not concerned with the motivation, intention and knowledge of others being imputed to the decision maker, but with the actual motivation, intention and knowledge of that decision maker. In the instant case, the Tribunal was entitled to conclude that because Mr Davison had no actual knowledge of the Claimant’s disability and there was no evidence that his decision to dismiss was because of an intention or motivation stemming from the Claimant’s disability, discrimination on that ground was not a consideration.
While this case has been decided under the old provisions of the Disability Discrimination Act 1995, it is of equal relevance to the Equality Act 2010. This case has confirmed that, in the context of deciding whether there has been discriminatory conduct, knowledge of disability in one part of an organisation (or by any individual within that organisation) does not necessarily mean that such knowledge can be imputed to the organisation generally or to any or all of its employees, particularly in relation to direct discrimination claims.
However, note that previous case law relating to imputed or constructive knowledge of disability for the purposes of other disability discrimination claims (such as the duty to make reasonable adjustments/discrimination arising from disability claims) continues to apply (there is also a separate test in relation to knowledge for the purposes of a reasonable adjustments claim).
Therefore, employers should in any case always ensure that relevant medical information is shared (with the individual’s consent) with key members of management so that appropriate action can be taken / informed decisions can be made.
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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