P Mefful v Citizens Advice Merton and Lambeth Ltd

For the purposes of Equality Act 2010 section 15(2), constructive knowledge of disability is a fact-sensitive evaluative question. The employer need not make every possible enquiry where there is little basis for doing so. The content and apparent purpose of an employee’s communication may be relevant to whether further enquiry was reasonably required.

An employment tribunal which makes a positive finding that the impugned decision was not influenced by the alleged disability-related matter need not first decide whether the burden of proof shifted. It must, however, take account of evidence which could bear on that causal question.

The claimant was dismissed for redundancy in August 2012 following a restructuring. Earlier proceedings established that the dismissal decision had been made by 19 March 2012, for the primary reason that the claimant lacked capability and engagement which the respondent did not wish to manage.

Following an earlier EAT remission, the Employment Tribunal dismissed the claimant’s claims under Equality Act 2010 sections 13 and 15. By a majority, it found that a January 2012 email concerning shoulder pain and a hospital appointment gave the respondent neither actual nor constructive knowledge of disability by the date of the dismissal decision. It also found unanimously that the dismissal was not because of disability-related sickness absence, appointments or treatment.

The claimant appealed the dismissal of the section 15 claim. The issues were constructive knowledge and whether a disability-related hospital appointment materially influenced the decision to dismiss.

1. Appeal dismissed. Each of the tribunal’s two conclusions was independently fatal to the section 15 claim: the respondent lacked actual and constructive knowledge of disability when the dismissal decision was made, and the dismissal was not because of something arising in consequence of disability.

2. The tribunal correctly directed itself on constructive knowledge under Equality Act 2010 section 15(2). Its majority was entitled to find that the January 2012 email, although reporting pain, medication and a hospital appointment, did not reasonably require the respondent to infer the statutory components of disability or to make further enquiries. The erroneous description of the appointment as making the claimant late for work was immaterial. Read as a whole, the tribunal considered the email’s contents and the surrounding circumstances.

3. The apparent purpose of the email was a relevant circumstance. The tribunal could properly regard it as explaining a clash with an important appointment, rather than raising an issue about the condition’s effect on the claimant’s ability to perform his work. The later May 2012 document concerning an occupational-health assessment did not require an inference about what the respondent knew or ought reasonably to have known before 19 March 2012, when the dismissal decision had already been made.

4. The tribunal also made a positive and lawful finding on causation. The matters found to have influenced the decision were the claimant’s lack of feedback, his choice not to attend the February staff meeting, and his assertion that he should be automatically assimilated into the Business Manager role. It was entitled to reject the contention that the January hospital appointment materially influenced the decision. In those circumstances, it did not need first to determine whether the burden of proof shifted.

5. The tribunal adhered to the defined scope of the remission. It was not required to investigate whether the appointment was an additional influence outside the remitted question of whether the defined primary reason for dismissal arose from disability.

• Employment Appeal Tribunal: The claimant’s appeal against the 2022 Employment Tribunal dismissal of the section 15 claim was dismissed: [2024] EAT 198.

• Employment Appeal Tribunal: In 2021, Stacey J allowed the respondent’s appeal in part, set aside the earlier upholding of the sections 13 and 15 claims, and remitted defined issues to the same tribunal.

• Employment Tribunal: On remission in 2022, the tribunal dismissed the Equality Act complaints. It found by a majority that the respondent lacked knowledge of disability by the date of the dismissal decision and unanimously found no section 15 causation.

• Employment Tribunal: In 2020, the tribunal had upheld direct-discrimination and section 15 complaints after an earlier remission.

• Employment Tribunal: In 2017, the tribunal upheld ordinary unfair dismissal following the respondent’s concession, but dismissed the Equality Act complaints. The claimant’s appeal from that dismissal succeeded, leading to the 2020 remission.