The Employment Appeal Tribunal looks into the difficulties people with mental health problems have when disclosing their problems to employers.
The Claimant (Ms.Z) in this case was employed part time by the Respondent as a financial co-ordinator. She had an extensive history of severe mental health problems including depression, low-mood and schizophrenia. Before she started her job with A Ltd she was asked to explain over 30 days sickness absence with a previous employer. The employment tribunal found that she had been deliberately misleading in attributing this absence to injuries sustained in a car accident and various other physical issues. Similarly, during the course of her employment with A Ltd she had various domestic crises that led to severe mental health problems leading to her becoming an in-patient in a psychiatric hospital. Again, Ms. Z attributed her absence to physical health problems although she had supplied a GP certificate which referred to “low mood” and another which referred to “mental health and joint issues”. After an absence of almost 2 months Ms. Z returned to work and was dismissed for poor attendance and poor time-keeping.
Ms. Z did not have sufficient length of service to bring an unfair dismissal claim, so her claim was that her dismissal was discrimination arising from her disability under section 15 of the Equality Act 2010. Her employer did not dispute that her dismissal was unfavourable treatment that arose from a disability, but it claimed: -
- that when it dismissed her it “did not know, and could not reasonably have been expected to know, that [she] had a disability” (section 15(1)(b) Equality Act 2010), and
- that her dismissal was justified in that it was a proportionate means of achieving the legitimate aim of maintaining a reliable accounting function (section 15(2) Equality Act 2010).
The Employment Tribunal (“ET”) looked at the question of whether the employer knew or should reasonably have been expected to know of Ms. Z’s disability and referred to the fact that “it is notorious that mental health problems very often carry a stigma which discourages people from disclosing such matters, even to family and friends”. The ET noted the references to mental health issues in the GP’s certificates, looked at the fact that A Ltd was a small but “sophisticated business” and ruled that “it was incumbent upon [them] to enquire into [Ms. Z’s] mental well-being and that their failure to do so precludes them from denying that they ought to have known that she had the disability”. On the question of justification the ET concluded that the “intemperate and precipitate” nature of the dismissal meant that it was not justified. It therefore found that A Ltd had discriminated against her.
However, in deciding on Ms. Z’s compensation the ET found that had A Ltd have made the enquiries about her health that they should have done then Ms. Z would have continued to hide her mental health problems and that a non-discriminatory dismissal would have followed soon afterwards. They also reduced her compensation by 20% because her very poor time-keeping had been a factor in her dismissal and this did not follow from her disability.
The employer appealed to the Employment Appeal Tribunal (“EAT”) which reversed the ET decision. The EAT looked at the way the ET had approached compensation, in particular its finding that Ms. Z would have continued to hide her mental health problems. The EAT said that the ET was wrong in focussing on what the employer ought reasonably to have done rather than on what it should reasonably have known. The ET, in its findings on compensation, had effectively concluded that had proper enquiries have been made Ms. Z would have continued to hide her condition meaning that her employers could not reasonably have been expected to know about it. This meant that A Ltd had not discriminated against her. The EAT went on to find that the ET had also been wrong in the way it had approached justification.
It was refreshing to see that at least one ET recognises the difficulties people with mental health problems have with disclosing their problems to their employers. Time to Change’s Attitudes to Mental Illness 2014 Research Report found that 48% of employees would be uncomfortable talking to their employer about their poor mental health. People with mental health problems face an awkward dilemma in work. People feel the stigma associated with mental health problems and realistically fear that their employer will discriminate against them if they know, which makes it harder for them to disclose. But in order to gain certain protections under the Equality Act 2010 (the right to reasonable adjustments and the protection from discrimination arising from disability) their employer must be aware or ought reasonably to be aware of their condition. However, as this case illustrates, our fear is that A Ltd v Z will make it even harder for people with mental health problems to be protected under the Equality Act 2010 and might make it easier for an employer who doesn’t make inquiries to argue that they have no liability under the Act. This demonstrates the need for reform of the Equality Act and other workplace legislation so that people with mental health problems are adequately protected in the workplace.
Read the full judgment here.