R Godfrey v Natwest Markets Plc

For the knowledge defence to disability discrimination, an employer need not know the claimant’s diagnosis. It must, however, show that it did not know, and could not reasonably have been expected to know, the facts constituting disability: a physical or mental impairment with a substantial and long-term adverse effect on normal day-to-day activities.

An employment tribunal errs if it treats notice of a particular diagnosis as the governing question. The error will not affect the result where a sustainable factual finding establishes that reasonable enquiries would not have yielded the relevant knowledge, including because the claimant would have refused assessment.

The claimant alleged disability discrimination under sections 13 and 15 of the Equality Act 2010. He relied on Asperger’s syndrome, diagnosed in 2018, and alleged that the respondent’s refusal between 2017 and 2019 to consider him for appointments was discriminatory.

The London Central Employment Tribunal dismissed the claims. It unanimously found no actual knowledge of disability and, by majority, no constructive knowledge. The claimant appealed, contending that the Tribunal had wrongly required knowledge of Asperger’s or autism spectrum disorder rather than knowledge of the factual features of disability.

The central issue was whether the Tribunal had applied the correct test for actual and constructive knowledge.

1. Appeal dismissed. The Employment Tribunal permissibly found that the respondent had no actual knowledge of the claimant’s disability. Treating a person as odd, socially inept, slightly arrogant or sensitive did not, without more, establish knowledge of a mental impairment amounting to disability.

2. The relevant inquiry under section 15(2) of the Equality Act 2010 was not whether the respondent knew, or could reasonably have discovered, the diagnosis of Asperger’s syndrome. It was whether it knew, or could reasonably have been expected to know, that the claimant had a mental impairment with a substantial and long-term adverse effect on normal day-to-day activities. That approach equally applied to the knowledge required for direct disability discrimination.

3. The majority reasoning of the Tribunal was unsafe to the extent that it asked whether the respondent should have been alerted to an autistic spectrum disorder. That was a higher and incorrect test. The Tribunal had to consider whether the available information should reasonably have prompted enquiry into the effects of a possible mental impairment generally.

4. That error did not require the appeal to succeed. The Tribunal majority had made an unchallenged counterfactual finding that the claimant would have resisted an assessment if the respondent had sought further enquiry. On that finding, reasonable investigation would not have given the respondent knowledge of the factual constituents of disability. It was therefore entitled to conclude that the respondent neither had, nor could reasonably have been expected to have, the requisite knowledge.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 81.
• London Central Employment Tribunal: Claims under sections 13 and 15 of the Equality Act 2010 dismissed. The decision was sent to the parties on 21 December 2021.