The claimant, an NHS Trust employee of nine years standing, was dismissed from his position due to his poor his short-term sickness absence record. His initial Tribunal claims, for Unfair Dismissal and for disability discrimination due to an alleged failure by the Trust to make reasonable adjustments, were unsuccessful. This position was upheld by the EAT, which held that the claimant had not engaged in meaningful, constructive practical steps to facilitate his return to work. The Tribunal's finding that the Trust had "imputed knowledge" that the claimant was disabled nevertheless led the employer to appeal.

During his employment, the claimant was frequently absent from work due to a variety of short-term ailments. The absences were initially due to chronic back problems, but later reasons for non- 23 attendance included an accident involving a Trust vehicle which resulted in an incorrect diagnosis of post-traumatic stress disorder, a diagnosis of angina and, more recently, diagnosed stress. The Trust acknowledged that the claimant had a disability, namely a personality disorder and depression. It did not concede, however, that it had a duty to make reasonable adjustments to its short-term absence policy, because it did not know (nor ought it to have known) that he had a disability and was likely to be substantially disadvantaged. The Trust argued that the Tribunal had used a "hindsight" test and that knowledge of a major personality disorder could not be ascribed to an employer simply "as a result of witnessing a random collection of symptoms and diagnoses".

The EAT rejected this argument. It held that the initial mislabelling of a mental illness, only for it to be later correctly re-labelled, was not diagnosing the condition for the first time using hindsight: it was giving the same mental condition a different name. It held that the fact that a wrong label was initially attached to the claimant's mental impairment did not detract from the evidence that the Trust knew of the symptoms and must be taken to have known that the nature of their cause was some sort of mental impairment. The possession by the Trust's Occupational Health Department of the claimant's medical details was significant. With regard to this point, the Tribunal made reference to the Equality and Human Rights Commission's Code of Practice on disability discrimination. The Code underlines that if any agent of an employer, such as an Occupational Health Unit or HR Department, is aware that an employee has a disability, the employer will not normally be able to assert that it lacks such knowledge. The Code also states that, where information on an employee's health can come via number of sources, there is a confidential means put in place by the employer for collating that information.

Note also the EAT's comment on the Tribunal's approach to the disparate claims: "We accept [the claimant’s] point that as a general approach it might be better for Employment Tribunals to consider disability discrimination before considering Unfair Dismissal not least because it would discourage any mixing of concepts of reasonableness in terms of Unfair Dismissal, which naturally involve consideration of a range of reasonable responses, with the reasonableness of adjustments, which almost certainly do not." http://bit.ly/12vqgFl