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Written by Brabners LLP
When an individual brings a disability discrimination claim, he or she must normally demonstrate that they have a health condition which meets the legal definition of a disability.
Section 6 of the Equality Act 2010 (“the Act”) sets out the legal definition. In summary, it confirms that a person has a disability if: (a) he or she has a physical or mental impairment; and (b) the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.
In the case of Mutombo-Mpania v Angard Staffing Solutions Ltd, the Employment Appeal Tribunal (EAT) held that an employee had failed to provide evidence of his impairment and that it had a substantial impact on his ability to carry out normal day to day activities. This meant that the legal definition was not met and his claim could not continue.
In this case, the Claimant worked for Angard Staffing Solutions (“Angard”), which supplied casual workers to work at the Royal Mail Group. The Claimant did not refer to himself as having any form of disability when completing Angard’s recruitment forms.
The Claimant’s terms and conditions of work stated that there were no normal hours of work and that hours of work would vary according to the needs of Angard and the availability of work. However, problems later arose on four occasions between November and December 2016 due to the Claimant not attending work. The Claimant had been diagnosed with essential hypertension (high blood pressure), but only told Angard that he had a “health condition” which prevented him from working regular night shifts by way of an explanation.
Later, Angard informed the Claimant that he would no longer be required for work. The Claimant started employment tribunal proceedings for multiple claims, including disability discrimination, against Angard. At a preliminary hearing, the tribunal sought to establish if the Claimant was disabled under the Act and whether the disability discrimination claim should continue.
The tribunal held that the Claimant had failed to discharge the burden of proof on him to show, through evidence, that his health condition met the legal definition. In particular, he had not evidenced that his condition had a substantial adverse effect on his ability to carry out normal day-to-day activities.
It was held that Angard could not have known, nor could it reasonably have been expected to know, that the Claimant had a disability. No disability or health conditions were referred to in the recruitment forms. Angard could not have made any required adjustments as a result.
The tribunal then went further to consider whether Angard had constructive knowledge of the disability – even though the Claimant did not inform Angard of his health condition, should it have been inferred by the employer? The tribunal said no. Whilst the Claimant had told Angard that he had a health condition that prevented him from doing certain shifts, the vague reference to a “health condition” was not enough for these purposes.
The tribunal did, however, warn that Angard should have made further enquiries to obtain more information about the Claimant’s condition and its impact on his work. This decision was upheld by the EAT.
This case shows the importance of communication between businesses and their workers in situations where health issues are present. Whilst the burden of proof is on the claimant to prove his or her disability in a disability discrimination claim, an employment tribunal will consider whether the employer knew or should have known about the disability if the employee does show this and the claim continues. This means that employers should look out for signs that workers may have a disability (even if they appear vague or too embarrassed to go into detail) and take steps to explore this in case reasonable adjustments are needed.
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership.