Blackadders: Knowledge of disability is key in disability discrimination claims
In claims of disability discrimination, employers often fail in arguing they did not know the employee was disabled. In Seccombe v Reed In Partnership Limited the employer succeeded where others have failed.
Mr Seccombe was a Supply Chain Manager employed for around one and a half years between 2016 and 2018. He was ultimately dismissed for performance-related reasons. Mr Seccombe claimed he was disabled by reason of his severe anxiety and depression. His employer denied Mr Seccombe was disabled and, even if he was, they had no knowledge it.
Mr Seccombe suffered from three periods of anxiety and depression, two of which predated his employment. The third was referred to as being caused by a “traumatic event” which both parties agreed was significant. Mr Seccombe was absent from work following the incident. On his return, he told his employer, “If I don’t explain what it is to someone close to me within the workplace I will have a breakdown”. He also made later comments such as “I’m barely able to talk about anything or see people without crumbling” and “I’m bordering on a… breakdown myself and I’m worried about work”. Mr Seccombe claimed he was dismissed because of the traumatic event.
What is the law?
A person is deemed to have a disability if:
- They have a physical or mental impairment; and
- It has a substantial effect on their day to day activities which has lasted, or is likely to last, 12 months or more.
Broadly speaking, in claims of disability discrimination, there is a requirement of knowledge on the part of the employer and the employee requires to prove this. In dealing with whether an employer ought reasonably to have known about an employee’s disability, the Employment Tribunal will assess the evidence presented to the employer to establish whether the employee met this test.
The Employment Tribunal found Mr Seccombe had never been formally diagnosed with severe anxiety and depression. The two previous occasions of anxiety and depression were not found to have continued over a long term and were isolated events. In any case, his ex-employer did not have knowledge of these two previous occasions and were entitled to treat the traumatic event as a one-off incident which, after a short period of absence, resulted in him being certified as fit for work. Mr Seccombe appealed.
The Employment Appeal Tribunal agreed with the decision of the Employment Tribunal. It found that his ex-employer knew Mr Seccombe was suffering from anxiety and depression which resulted in a substantial adverse effect to carry out his day-to-day activities. However, they did not know the effects of the impairment were long term. On that basis, the employer was successful in resisting the claim.
This case provides some comfort to employers that an Employment Tribunal will look objectively at whether an employer had known, or ought reasonably to have known, of a disability. However, this is not a “get out of jail free card” for employers. One of the key factors was that the employer had a number of frank discussions with Mr Seccombe about his absence and he did not mention his alleged disabilities. Therefore, employers should always be proactive in establishing the cause for any absence as this can ultimately work in their favour if the employee stays silent on the matter.
If you need any assistance on how to deal with disabilities in the workplace, please contact a member of the Blackadders Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow and Perth.
Duncan Milne, Solicitor
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