An employer will not discriminate against someone because of their disability if the employer did not know, and could not reasonably have been expected to know, that the employee was disabled. Whether an employer could reasonably be expected to know about a disability is often referred to as 'constructive knowledge'.
In A v Z, the employee was employed as a part time finance coordinator for less than six months. She had stress, depression, low mood and schizophrenia but had not told her employer about these conditions. When she was recruited, she had explained away significant historical sickness absence with physical illness. She completed a form saying she did not have a disability. During her short period of employment, the employee had 85 days' absence, with 52 days recorded as sick. Again, the employee said her absence was due to physical illness. She did not mention any mental health issues. She was signed off with low mood and wrote to the employer a week later, saying she was 'incredibly depressed' due to family problems. However, she did not tell her employer when she was hospitalised for two weeks for psychiatric care and continued to explain her absence with physical illness. When she was dismissed, she brought a disability discrimination claim. The question for the tribunal to decide first was whether the employer had constructive knowledge of her disability.(more…)