Philip McQueen v General Optical Council
[2023] EAT 36
R Godfrey v Natwest Markets Plc
24 May 2024
[2024] EAT 81
Employment Appeal Tribunal
A person sued their former employer for disability discrimination, saying the employer should have known about their Asperger's from their previous behavior. The court said the employer only needed to know about the effects of the disability, not the specific diagnosis. Even though the court made some minor mistakes, it correctly decided the employer didn't have to know because the employee wouldn't have cooperated with any investigation anyway.
Key Facts
- •Claimant (Mr. Godfrey) sued NatWest Market PLC for disability discrimination under sections 13 and 15 of the Equality Act 2010 (EqA).
- •Claimant's disability: Asperger's syndrome (diagnosed in 2018).
- •Claimant previously worked for the respondent (2006-2011) and alleged the respondent had constructive knowledge of his disability based on his behavior during that time.
- •Respondent argued it lacked knowledge (actual or constructive) of the claimant's disability.
- •Employment Tribunal (ET) unanimously found no actual knowledge and by majority found no constructive knowledge.
- •Claimant appealed, arguing the ET applied the wrong legal test, focusing on the diagnosis rather than the factual constituents of the disability.
Legal Principles
For disability discrimination claims, the respondent must have knowledge (actual or constructive) of the facts constituting the claimant's disability, not necessarily the diagnosis.
Gallop v Newport City Council [2013] EWCA Civ 1583, A Ltd v Z [2020] ICR 199
Under section 15(2) EqA, the respondent avoids liability if it shows it did not know, and could not reasonably have been expected to know, of the claimant's disability. The test for constructive knowledge is whether it could reasonably have been expected to know of the facts demonstrating a disability.
A Ltd v Z [2020] ICR 199
The ET's assessment of reasonableness must consider all relevant factors, be adequately reasoned, and balance enquiry requirements with the employee's dignity and privacy.
A Ltd v Z [2020] ICR 199, Equality and Human Rights Commission Employment Statutory Code of Practice
The definition of disability under section 6 EqA focuses on the adverse effect of the impairment on the claimant's ability to carry out normal day-to-day activities (substantial and long-term).
Equality Act 2010, section 6
Outcomes
Appeal dismissed.
The ET correctly applied the legal test by considering the respondent's knowledge of the factual constituents of the claimant's disability, not just the diagnosis. While some aspects of the ET majority's reasoning suggested a higher test, the majority's ultimate conclusion was permissible given their finding that the claimant would have resisted any investigation.