In discrimination claims, tribunals sometimes have to decide when the employer became aware that their employee was disabled or when they ought reasonably to have known.
In Lingard v Leading Learners Multi Academy Trust, the Employment Appeal Tribunal (EAT) held that the tribunal was right to find, as a matter of fact, that the trust did not know and could not have been expected to know of Ms Lingard’s disability until after she started tribunal proceedings.
Basic facts
Ms Lingard was a former headteacher who had been diagnosed with hypertension (high blood pressure) in late 2014 which was treated with medication from January 2015.
Despite the medication, she reported an ongoing problem with headaches and fatigue and, in early November 2016, she went off sick with work related stress and high blood pressure. An occupational health (OH) report dated 15 November 2016 estimated that she would return to work in two to four weeks, subject to her being able to control her blood pressure and improve any stress related symptoms.
After she was dismissed in March 2017, she lodged claims for direct disability discrimination, discrimination arising from disability and claims of failure to make reasonable adjustments, arguing that her employer knew of her disability following the OH report in November 2016.
Prior to the full tribunal hearing, a medical report was commissioned from a consultant cardiologist who stated that her mild hypertension did not cause her headaches and that stress was a much more likely reason.
A second report by Dr Britto, a psychiatrist, in May 2018 revealed that her symptoms of headaches, fatigue and anxiety were the result of an anxiety disorder. In a second report, he stated that there was no evidence of any effect on day-to-day activities before November 2016 (one of the criteria for proving disability discrimination). A report by another psychiatrist confirmed that she was suffering from moderate depression that could be traced back to November 2016.
Tribunal decision
The tribunal stated that the extent of the knowledge required on the part of the employer was the same under section 13 (direct discrimination), section 15 (discrimination arising from disability) and section 20 (the duty to make reasonable adjustments) of the Equality Act 2010.
In other words, if the employer did not know, and could not reasonably have been expected to know that Ms Lingard was disabled, then they could not be guilty of discrimination. It also noted an additional requirement under section 20 whereby the employer also had to know about the substantial disadvantage the claimant was put under because of a provision, criterion or practice that they had applied.
The tribunal found that the OH report of November 2016 did not “fix” the trust with the knowledge that Ms Lingard had a disability, not least because it had stated that she would soon return to work. Furthermore, it could not have known (nor could it have been expected to know) that she had a disability in a situation where there was no substantial adverse effect on her work activities until November 2016 and the trust had no or very limited knowledge as to any effect on her personal life.
It was subsequently found that the trust did not have knowledge of any disability at the relevant time and, therefore, the claims for discrimination failed.
She appealed, arguing that the tribunal had got the legal tests wrong.
EAT decision
The EAT held that the appeal amounted to little more than a complaint about the findings of fact that the tribunal had made (and was entitled to make) as opposed to any error of law it might have fallen into.
For instance, the references to the OH report and to Dr Britto’s firm conclusion as to the likely date that the trust could have known of her disability were clearly relevant to the exercise which the tribunal had to undertake as part of its fact-finding duty. Indeed, Ms Lingard herself had not been aware of the real basis of her disability until she had received the cardiologist’s report and that of Dr Britto, which was written a year after she had brought her claim.
As the tribunal had not made an error of law, the EAT dismissed her appeal.
Comment
This is an interesting case in which the correct head(s) of claim were pleaded but the wrong disability was presented. It is interesting that the claimant seemed unaware that it was the stress that was causing her symptoms and not the hypertension, but presumably she focused on the latter because that was the first diagnosis she was given. It is worth bearing in mind that if the tribunal had dealt with the issue of disability earlier (for instance at a preliminary hearing), this might have saved time and money given the likelihood that the claimant would not have met the required test.