Establishing if a disability is a disability

Can an employee prove disability without leading evidence on the impact of the employee's impairment on normal day to day activities?

Does an employer have constructive knowledge of disability if an employee has denied having one?

A recent case in the Employment Appeals Tribunal recently explored these issues and found the answer to be "no". The case was  Mutombo-Mpania v Angard Staffing Solutions Ltd.

Employee fails to disclose disability

The Claimant in this case worked for the First Respondent, Angard Staffing Solutions Ltd, which is an employment agency supplying temporary workers to the Second Respondent, the Royal Mail Group. On joining, he did not indicate any disabilities on his application form.

He sought to rely on his impairment of Essential Hypertension to avoid working regular night shifts. Despite medication, his symptoms included headaches, fatigue, breathing difficulties and lack of confidence.

The Claimant, Mr Mutombo-Mpania, was dismissed after his non-attendance on four occasions. He made a number of claims at the Employment Tribunal including disability discrimination.

Did he qualify as disabled?

At the Employment Tribunal, the Claimant provided no evidence for the tribunal of the functional impact of his impairment on his ability to carry out normal day to day activities.

Chris Dobbs, a Solicitor in our Employment Team, says "The burden of proof is on the Claimant to demonstrate substantial adverse effect. He failed to do so which means that he did not meet the section 6 Equality Act 2010 definition."

The Employment Tribunal found that Mr Mutombo-Mpania was not a disabled person and that, in any event, the employer did not know and could not have reasonably have known of his disability. The Claimant appealed.

Employee fails to disclose disability

The Employment Appeals Tribunal dismissed the appeal for two basic reasons:

  1. The Claimant had failed to lead evidence of what particular day to day activities would be affected by his condition and 
  2. Had the Claimant proved that he was disabled, the Tribunal's conclusion on constructive knowledge was one that it was entitled to reach.

Constructive knowledge

On the issue of knowledge, even if the employer was under a duty to ask questions, a vague reference to a "health condition" did not infer constructive knowledge. The employee had worked night shifts before and had denied having a disability.

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and the Employment Team will be happy to discuss it with you.