McCubbin v Perth & Kinross Council

Under Schedule 8 paragraph 20(1)(b) of the Equality Act 2010, an employer’s actual knowledge of disability and the knowledge it could reasonably have acquired are separate questions. A tribunal errs if it finds that the employer lacked actual knowledge and then treats that finding as resolving constructive knowledge without considering what further knowledge it could reasonably be expected to obtain from the information available.

Where the constructive-knowledge issue is interwoven with the merits and evidence required for the substantive discrimination claim, it may appropriately be determined at the full hearing rather than as a preliminary issue.

The Claimant, a teacher, brought claims including disability discrimination. At a pre-hearing review, the Employment Tribunal held that he was disabled from 13 July 2010 and that the Respondent had actual or constructive knowledge of his disability only from 25 September 2012, when it received an occupational-health report.

The Claimant appealed the determination of knowledge. He contended that the Tribunal had failed to decide separately whether the Respondent could reasonably have been expected to know of his disability from information concerning stress, counselling, medication and workplace discussions. The central issue was whether the Tribunal had correctly applied Schedule 8 paragraph 20(1)(b) of the Equality Act 2010.

1. Appeal allowed. The Employment Tribunal erred in law in its determination of the Respondent’s knowledge.

2. Schedule 8 paragraph 20(1)(b) of the Equality Act 2010 required the Tribunal to address not only whether the Respondent actually knew that the Claimant was disabled, but also whether it could reasonably be expected to know that fact. The latter was a distinct statutory question within the issue of awareness.

3. The Tribunal made findings that the relevant managers had not been told that the Claimant had depression. It then concluded that they did not know, and ought not to have known, that he was disabled. That reasoning did not explain what knowledge the Respondent could reasonably have acquired from the information supplied to those managers, nor did it separately assess constructive knowledge.

4. The same defect arose in relation to the period before the occupational-health report of 25 September 2012. The Tribunal identified that report as the point at which knowledge arose, but did not consider whether the Respondent could reasonably have been expected to know at an earlier date.

5. The question of constructive knowledge was not suitable for separate preliminary determination. It should be determined efficiently with the full merits of the claim, where the relevant evidence can be considered together. The issue was held over to the full hearing.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal and directed that constructive knowledge be determined at the full hearing.
• Employment Tribunal: At a pre-hearing review before Employment Judge Bell, held that the Claimant was disabled from 13 July 2010 and that the Respondent had actual or constructive knowledge only from 25 September 2012.