Valerie Bond
Posted on 26 Oct 2021

Employment Update: Is it discrimination if the employer did not know of the disability?

In the case of Stott v Ralli Ltd (UKEAT/0223/20/VP) the Employment Tribunal ('ET') rejected a discrimination claim relating to a dismissal for something arising from disability as the employer only found out about the disability after the dismissal. The Employment Appeal Tribunal ('EAT') was then required to determine whether or not the ET had been entitled to reject such a claim.

What are the tests for disability discrimination?

Disability Under the Equality Act 2010

Section 6 of the Equality Act 2010 (EqA) states that an individual is disabled if:

  1. They have a physical or mental impairment; and
  2. That impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities

This definition can be considered in more detail by breaking it down into the following:

Physical or mental impairment

Under the EqA, there is not a specific definition of “physical or mental impairment”. Instead, the terms should be given their ordinary and natural meaning. There is also no need to consider how the impairment was caused; instead, the focus is on the effect of the impairment.

Substantial adverse effect

According to the EqA, "substantial" means ‘more than minor or trivial’. If the adverse effect has more than a minor or trivial impact on the person’s ability to carry out day-to-day activities, then this part of the definition will be met. The focus of the test is to look at what a person cannot do, or can do only with difficulty, rather than what they are able to do.

The effect must be long-term

The impairment will be classed as “long-term” if:

  1. It has lasted for at least 12 months; or
  2. It is likely to last for 12 months or more; or
  3. It is likely to last for the rest of the life of the person affected.

In SCA Packaging Ltd v Boyle [2009] UKHL 37 it was held that the word ‘likely’ should be interpreted as meaning ‘could well happen’ rather than ‘more likely than not’.

Discrimination under the Equality Act 2010

Under the EqA, disability is a 'protected characteristic'. This makes it unlawful for an employer to discriminate on the basis of disability. There are four main types of disability discrimination:

1.Direct discrimination;

2.Indirect discrimination;

3.Harassment; and

4.Victimisation.

Disability discrimination legislation protects both job applicants and those "in employment" under a contract of employment, a contract of apprenticeship and a contract personally to do work.

Understandably, if an employer unlawfully discriminates against a job applicant or someone "in employment", they will be liable. However, employers may also be liable for the unlawful actions of their employees if they were carried out 'in the course of employment'. Therefore, employers may be vicariously liable regardless of whether they had knowledge of the unlawful actions carried out by an employee.

Importantly, an employer may be able to defend a claim resulting from the above if it is able to show that all 'reasonable steps' were taken to prevent the employee from doing the discriminatory act or from doing anything of that description.

Stott v Ralli Ltd – The Facts

The Claimant worked as a paralegal for the Respondent until she was dismissed for poor performance during her probationary period. The Claimant raised a grievance following her dismissal which made reference to disability, therefore making the Respondent aware. Both the grievance and appeal were dismissed by the Respondent.

The Claimant then brought a claim in the ET alleging that her dismissal was discriminatory. However, she did not complain about the grievance or appeal outcomes.

The ET held that as the Respondent did not know, and could not reasonably have been expected to have known, about the Claimant's disability when dismissing, the act of dismissal could not be discriminatory.

Did the EAT agree?

The EAT held that, based on the facts, the case was solely relating to the Claimant's dismissal and not what happened afterwards (such as the grievance alerting the Respondent to the Claimant's disability).

The EAT concluded that it was not wrong for the ET to have merely focused on whether the dismissal was discriminatory as the grievance and appeal were not included in the case hear by the ET.

The knowledge or constructive knowledge of the Claimant's disability established after her dismissal would not have changed the outcome for the Claimant.

The EAT distinguished between a discriminatory appeal, a discriminatory dismissal and an unfair dismissal which concentrated on the fairness of processes.

What should Employers take away from this?

Whilst it is important for employers to ensure that they have the correct policies and procedures in place to prevent discrimination, there is little that can be done where they are unaware of an individual's disability.

However, this is a helpful reminder to employers to update their policies regularly so that if such claims do arise, they are able to show that they have taken reasonable steps to prevent all forms of discrimination.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Valerie Bond to discuss any issues you are facing.