In the recent decision handed down by Deputy High Court Judge Bowers in Hussain v London Fire Commissioner, the Employment Appeal Tribunal (EAT) upheld the Tribunal’s decision on constructive knowledge of disability but remitted the ‘discrimination arising from disability’ claim for reconsideration. The judgment highlights two key points:
The Claimant began working for the Respondent as a firefighter in 2004 and did so for over a decade without raising any concerns that he may have dyslexia nor was there any indication that dyslexia affected his day-to-day activities, despite the fact that he had undergone various assessments during his employment.
However, on 14 October 2019, following the Claimant’s long period of sickness absence and an assessment carried out by an educational psychologist, the Claimant was diagnosed with dyslexia. The Respondent accepted that it had knowledge of the Claimant’s dyslexia from this date and that it was a disability in accordance with the EqA 2010.
The Claimant brought a multifaceted disability discrimination claim under the EqA 2010. This was unsuccessful at Tribunal, and the Claimant appealed on two grounds, namely: -
The Claimant argued that the Respondent should have identified his dyslexia earlier and that reasonable adjustments would have followed this diagnosis.
The EAT rejected this ground of appeal, upholding the decision at first instance.
The EAT emphasised that constructive knowledge is an objective test of reasonableness. Employers must take reasonable steps to establish whether an employee is disabled but need not pursue every possible line of enquiry where there is little basis for suspecting a disability.
On the factual matrix of this case there were various supporting factors that highlighted the Respondent took reasonable steps. In particular, on suggestion that the Claimant may have mild dyslexia, the Respondent arranged for a screening test in 2018 that indicated that there was a low probability that the Claimant was dyslexic.
The Claimant alleged that his anxiety and depression caused him to refuse the provision of a statement regarding a workplace safety issue that he had raised. He alleged that he was then subjected to unfavourable treatment because of that refusal, namely that a senior firefighter berated him for not providing the statement.
The EAT held that at first instance the Tribunal had erred.
The Tribunal treated the Claimant’s anxiety and depression itself as the relevant "something arising". However, it should instead have considered whether the Claimant’s refusal to provide the statement arose from his anxiety and depression. The correct question should have been; ‘was the Claimant treated unfavourably because of something that arose from his anxiety and depression?’
The EAT called the Tribunal’s reasoning unsafe and remitted the second appeal ground to the same Tribunal for reconsideration.
This judgment highlights that though an employer has a duty to investigate a potential disability of an employee, that investigation must be reasonable and the extent of that investigation assessed by reference to the information available to the employer at the relevant time, together with what it could reasonably have been expected to discover had reasonable enquiries been made.
Additionally, the judgment serves as a useful reminder that when dealing with s.15 EqA 2010 claims, there is an essential distinction between the disability and the consequence of that…
