(Photo: Creative Commons)

If an employee meets the definition of a ‘disabled person’ under the Equality Act 2010, they have certain specific rights and protections. The question of knowledge of the disability is often a significant issue for an employer, as in many cases the employee concerned do not declare themselves to be ‘disabled’, but the knowledge an employer has about their health can sometimes lead to what is known as ‘constructive notice’ of an employee’s disability.

The recent case of Mutombo-Mpania v Angard Staffing Solutions Ltd UKEATS/0002/18/JW provided a helpful reminder, however, that knowledge of ill health did not necessarily lead to knowledge of disability.

Mr Mutombo-Mpania was employed as a flexible worker by Angard Staffing Solutions (“Angard”), which supplies Royal Mail with casual staff, from November 2015. He had been diagnosed with Essential Hypertension (raised blood pressure without a known cause) from 2011 and took daily medication to prevent the associated risks of his condition, such as heart attacks. His symptoms included fatigue, headaches and breathing difficulties.

Throughout the first year of his employment, he regularly worked a late shift at Glasgow Mail Centre, finishing at 10 pm. During the Christmas period of 2016, there was a requirement for more night workers, so Mr Mutombo-Mpania accepted to work the night shift between November and January.

However, he later emailed to say that he could not work regular night shifts due to his ‘health conditions’ and asked to move back to his regular late shift. This was done for the first week, but in subsequent weeks he was booked to undertake the night shift but did not attend for four shifts in a three week period. As a result, Glasgow Mail Centre decided that they no longer wanted Mr Mutombo-Mpania to work there, and informed Angard of their decision.

Mr Mutombo-Mpania was unhappy with the decision and brought various claims in the employment tribunal including a claim for disability discrimination.

The first issue to be determined was whether he was a disabled person, and if so, whether Angard had knowledge of his disability. At a hearing, a judge found that Mr Mutombo-Mpania had not demonstrated sufficient evidence that his essential hypertension amounted to a disability. However, even if he had, the judge went on to decide that Angard would not have been considered to have constructive notice of such a disability. Mr Mutombo-Mpania had completed an application form and a health questionnaire at the start of his employment and had not made any mention of his diagnosis. Thereafter, he had worked without issue for over a year.

Even when he had raised concerns about his ability to work, he had simply referred to a ‘health condition’ without any further details. The judge considered that this oblique reference, together with the four missed shifts, was insufficient to infer constructive knowledge of disability on the part of Angard.

Mr Mutombo-Mpania appealed to the Employment Appeal Tribunal against both conclusions. In relation to the knowledge issue, he argued that upon raising ‘health concerns’ to Angard, this put them on notice to make further enquiries about his health, which might have led them to become aware of his diagnosis.

The Employment Appeal Tribunal, however, decided that an employer had to balance the information it had about an employee; in this case, whilst Angard were aware that Mr Mutombo-Mpania had raised health concerns about working a night shift, that had to be balanced against the fact that he had not raised any previous issues about his health (including in the health questionnaire) and had worked late shifts without issue. In those circumstances, there was insufficient information to infer constructive knowledge on this occasion.

Whilst Mr Mutombo-Mpania was unable to pursue his disability discrimination claim, and could not establish constructive knowledge on this occasion, this case serves as a reminder that there may well be circumstances where an employer is deemed to have knowledge of a disability even though no actual notice has been given by the employee.

It will very much depend on the factual circumstances and the extent to which the employer is aware of facts from which such knowledge might be inferred. Where an employer becomes aware of health-related issues, it is advisable to conduct reasonable investigations to ensure that it has a full picture and can respond accordingly.

Safia Tharoo, Barrister, 42 Bedford Row, London