Morgan v Armadillo Managed Services Ltd

It is not enough for an employer to be unaware of a legal characterisation of an impairment; rather, before direct disability discrimination under Equality Act 2010 s 13(1) can be made out the employer must have actual or constructive knowledge of the facts constituting the claimant's impairment. The same knowledge requirement governs liability under s 15 save where s 15(2) defence applies. A party will not be permitted to withdraw a clear concession in the ET absent exceptional circumstances.

This is an appeal from an Employment Tribunal decision concerning claims of direct disability discrimination and discrimination arising from disability. The Tribunal found the claimant was disabled but that the respondent did not know, and could not reasonably have been expected to know, of that disability by the material dates. The appeal raised two issues: (1) whether knowledge is required for direct discrimination under Equality Act 2010 s 13(1), and (2) whether the refusal to pay commission was "because of something arising in consequence of" disability under s 15. The EAT considered authority including [2013] EWCA Civ 1583 (Gallop) and dismissed the appeal, upholding the Tribunal's findings on knowledge and causation.

(1) The appeal is dismissed. The Employment Tribunal's conclusion that the respondent did not have actual or constructive knowledge of the claimant's disability was open to it on the evidence and defeats both the direct discrimination claim under Equality Act 2010 s 13(1) and the s 15 claim by virtue of s 15(2). (See paras [36]–[37]; [48]).

(2) Legal proposition on s 13(1): the EAT accepts and follows the Court of Appeal in [2013] EWCA Civ 1583 (Gallop). Before an employer can be answerable for direct disability discrimination the employer must have actual or constructive knowledge of the facts constituting the employee's impairment. It is sufficient that the employer knows the relevant facts; the employer need not know the legal characterisation that those facts make the person 'disabled' (paras [27]–[31]).

(3) Section 15 and causation: the Tribunal's factual finding that the claimant was not paid commission because he was not at work and that his absence resulted from the accident rather than from consequences of his disability was a permissible finding of fact. That finding, unchallenged as perverse, defeats the s 15 claim because of s 15(2) (paras [32]–[36]).

(4) Concession rule: the appellant sought to resile from a concession made before the Employment Tribunal that knowledge was required. The EAT applied established guidance on withdrawal of concessions and concluded no exceptional circumstances justified permitting withdrawal. The concession was rightly accepted by the Tribunal (paras [17]–[26]).

Ordered: Appeal dismissed.

• Employment Appeal Tribunal: Appeal from Watford Employment Tribunal. Judgment: appeal dismissed (this judgment) (paras [1]; [37]).
• Employment Tribunal (Watford): First instance decision found claimant disabled but respondent lacked actual or constructive knowledge and denied commission; reasons provided (reserved judgment sent 14 August 2012) (see Reasons, paras [46]–[50]).