Summary Description:

EAT outlines that an employer would be put on notice where they should be making enquiries as to the possible effects of a general mental impairment in the context of autism spectrum disorder.

Background:

The claimant was employed by the respondent from 2006-2011.  He sought various appointments with the respondent in 2017-2019 but he had been unsuccessful.    The claimant is disabled within the definition given by the Equality Act 2010 by reason of having the autism spectrum disorder, Asperger’s Syndrome.

The claimant suggested that the respondent was aware of his disability due to his behaviour when he previously worked at the respondent.  Noting that there were comments about how his brain worked differently.  The claimant was not diagnosed though until 2018 yet suggested that his colleagues at the time would have been aware of his communication and social interaction problems.  The respondent argued that they had no knowledge of the claimant’s disability.

Outcome:

The Tribunal, at first instance, dismissed the claimant’s case holding that the respondent had no actual knowledge of the claimant’s disability.   They also found that there was nothing that would have put the respondent on notice of the disability.    The claimant appealed to the EAT citing that the Tribunal failed to apply the correct legal test.

The EAT dismissed the appeal.   The EAT outlined that there was limited evidence of any behaviours on the part of the claimant that would have made the respondent aware of the disability during the earlier period of employment.   However, when it came to the issue of being put on constructive notice the EAT found that the Tribunal applied a higher test. The Tribunal had asked whether the respondent might reasonably have been put on notice of the need to make further investigation into whether the claimant suffered from the disability rather than the test of whether it might reasonably have been aware of the need to make enquiry as to the possible effects of a more general mental impairment.  However, considering that the Tribunal had considered the lower test noting that it would not have made any difference there was no need to interfere with the decision.

Practical Guidance for Employers:

When it comes to making reasonable adjustments or issues relating to provisions, criteria or policies which may affect disabled employees it is normal to ask ‘what is a disability?’ and ‘How do I know about it?’.  This decision goes to the latter stating that it depends on the context and if the employer would have to make enquiry as to the effects of a general mental impairment should that arise within the relationship with the employee.  This is important in knowing whether there is that duty on employers.
https://assets.publishing.service.gov.uk/media/66505ca52eb55b89628fc45f/Mr_R_Godfrey_v_Natwest_Market_Plc__2024__EAT_81.pdf