A Ltd v Z

For the knowledge defence in section 15(2) of the Equality Act 2010, an Employment Tribunal must ask not only what enquiries an employer ought reasonably to have made, but what the employer could reasonably have been expected to know if those enquiries had been made. A failure to make further enquiries does not establish constructive knowledge where the employee would have continued to conceal the disability and refused a referral capable of revealing it.

In assessing justification, the tribunal must balance the discriminatory impact of dismissal against the employer’s actual business needs. In assessing compensation, a non-discriminatory reason for dismissal may, on the facts, be addressed through contributory fault rather than a separate initial apportionment.

The claimant, a part-time Finance Co-ordinator, had longstanding mental health impairments that constituted a disability. She did not disclose them to the respondent and attributed absences to physical ailments and personal circumstances. The respondent dismissed her for poor attendance and timekeeping.

The London Central Employment Tribunal upheld a claim under section 15 of the Equality Act 2010. It found no actual knowledge, but constructive knowledge because the respondent should have made further enquiries. It also rejected justification and made compensation findings under Chagger, including a 20% reduction for contributory fault.

The respondent appealed on constructive knowledge, justification, apportionment and loss. The central issue was whether reasonable further enquiries could have given the respondent knowledge of a disability which the claimant would have continued to conceal.

1. Appeal allowed. The Employment Tribunal’s judgment for the claimant was set aside and substituted with dismissal of her section 15 disability-discrimination claim.

2. Section 15(2) of the Equality Act 2010 concerns the employer’s knowledge of the disability. The inquiry does not end by asking whether the employer ought reasonably to have made further enquiries. The tribunal must also determine whether, after making such enquiries, the employer could reasonably have been expected to know facts establishing a physical or mental impairment with substantial and long-term adverse effects.

3. The Tribunal had found that, even if further enquiries had been made, the claimant would have concealed her mental health history, maintained that she was fit to work, and refused occupational-health or other medical examination. Those findings meant that the respondent could not reasonably have been expected to know of her disability. The Tribunal had therefore applied the wrong test in treating its failure to make enquiries as sufficient constructive knowledge. No remittal was required.

4. It was unnecessary to decide justification. However, the judge held that the Tribunal’s reasoning addressed the precipitate and summary character of dismissal rather than whether termination itself was proportionate. The required balance had to include the respondent’s need for a dependable Finance Co-ordinator and its business needs, consistently with Hensman v Military of Defence UKEAT/0067/14. The reasoning did not demonstrate that balance, so this ground would also have succeeded.

5. It was likewise unnecessary to decide loss. The Tribunal permissibly took the claimant’s non-disability-related poor timekeeping into account as contributory fault, reducing compensation by 20%. Its remaining counterfactual assessment under Abbey National plc and another v Chagger [2009] ICR 624 was not perverse and would not have been disturbed.

1. Employment Appeal Tribunal: Appeal allowed. The Employment Tribunal’s finding of unlawful disability discrimination was set aside and the claim was dismissed.
2. London Central Employment Tribunal: The claimant’s section 15 disability-discrimination complaint was upheld. The Tribunal found constructive knowledge, rejected justification, and assessed compensation subject to a 20% reduction for contributory fault.