This sometimes leads employers to believe that employees have a pretty low hurdle to get over when proving disability discrimination claims. However, Seccombe v Reed is an example of a tribunal finding the employer could not reasonably have been expected to know of the disability, meaning the employee's claim failed.
The claimant had had three periods of absence related to anxiety and depression during his career, but the first two predated his employment with Reed. When he began working for Reed he had completed an equal opportunities questionnaire indicating he had no health-related issues which might require reasonable adjustments and at no time did during his employment did he indicate any mental impairment.
A traumatic event led to the third period of absence which was during his employment with Reed. However, having no knowledge of the earlier absences, Reed assumed the matter was resolved on the claimant's return to work. He was subsequently dismissed for poor performance. The claimant's tribunal application alleged disability discrimination and a failure to make reasonable adjustments. The claim was dismissed by the employment tribunal on the basis that the claimant did not meet the test of disability under the Equality Act 2010, or even if he did meet the test, Reed did not have knowledge of the disability and could not therefore be held liable.
When the claimant appealed, the EAT upheld the employment tribunal's judgment. In respect of the finding that the employer could not reasonably be expected to know the claimant was a disabled person, the EAT took into account (1) that the earlier periods of absence predated the employment at Reed and (2) that the claimant had not informed Reed that he had an underlying condition in the equal opportunities questionnaire or following his absence from Reed or even during the performance review meeting held prior to his dismissal. The claimant had attempted to argue that the fact he had not discussed his condition with colleagues was due to its sensitive nature. However, the EAT were of the view that "the fact that a claimant told friends or an employer that he was continuing to be affected by the condition could be relevant. Similarly, it could be relevant that a claimant did not tell people that an impairment was continuing to have an effect". In the circumstances of this particular case the tribunal had been correct to find the employer could not have been reasonably expected to have knowledge of the disability.
This case should bring employers some comfort that employees who make no mention of an impairment may find it difficult to establish that the employer has the necessary knowledge of disability. This is all the more likely when the disability in question is a so called "invisible disability" such as autism, PTSD and other mental health conditions. However, it should be remembered that in some circumstances even when an employee does not expressly disclose a health condition, employers may still be found to have the requisite knowledge of disability. Simply choosing to ignore signs of disability will not avoid liability should a claim be made at a later date.
