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In the recent Employment Appeal Tribunal (“EAT”) case of Seccombe v Reed in Partnership Ltd, the EAT considered whether the tribunal had been right to conclude that the Claimant was not classed as disabled as he was unable to show that his mental impairment had a long-term adverse impact and that, even if he was disabled, the Respondent did not know, and could not have reasonably have known about the impairment.

Mr Seccombe (the Claimant) had been employed by Reed (the Respondent) since November 2016. Prior to this, the Claimant had two short-term episodes of ill-health which were related to specific events, and which were not found to be long-term.

When the Claimant began employment with the Respondent, he completed an equal opportunities questionnaire in which he confirmed that he did not have any health-related issues or impairments that would require the Respondent to make reasonable adjustments.

Following a traumatic event in December 2017, the Claimant was signed off work sick but was deemed fit to return to work in February 2018.

At his quarterly review meeting at the end of March 2018, the Respondent terminated the Claimant’s employment on the grounds of poor performance. During and after the meeting no mention was made by the Claimant of his mental impairment. In fact, no mention was made of this until the Claimant issued claims for disability discrimination.

At first instance, the Tribunal held that the Claimant was not disabled for the purposes of the Equality Act (EqA) at the relevant time (i.e the time of his dismissal) as there was no cogent evidence of him having a condition that was likely to return.

Despite the Claimant relying on a condition of “severe anxiety and depression” to establish his disability, his medical records made clear that he had never been diagnosed with these conditions. Instead, the notes showed two previous episodes of mental ill-health: depression in 2008 following a difficult surgery and marital issues and stress and work and anxiety in 2015.

In the alternative, the Tribunal held that the Respondent had not known, and could not reasonably have been expected to know, that the Claimant was disabled at the relevant time. Whilst the Claimant had a number of frank discussions with his employer about his absence, he did not mention his alleged disabilities, nor did he indicate at any time before dismissal that he suffered any impairment that had a long-term impact on his day-to-day activities. He had not, for instance, mentioned this on the Respondent’s equal opportunities questionnaire.

Accordingly, the claim was dismissed and the Claimant appealed.

The EAT upheld the tribunal’s decision. In particular, the EAT noted that the two incidents of depression and anxiety referred to in the medical notes had taken place prior to the Claimant’s employment with the Respondent and they had not been aware of those.

Further, the EAT confirmed that what an individual does or does not say about their impairment should be considered when assessing if they are disabled at the relevant time. This is because the individual will often be best placed to explain the effect their impairment has on their day-to-day activities. This is particularly important where there is no medical evidence in support. If an employee is silent on the matter, it will be much harder for them to establish disability and/or that their employer had knowledge of said disability at tribunal at a later date.

Generally, the EAT’s judgement provides a good summary of the law on disability and knowledge under the EqA, running through the legal test under section 6 EqA and the key cases that have established how that test should be applied. The EAT reconfirmed, for example, the key principles from Goodwin v The Patent Office (breaking down the test under section 6 – the condition; the adverse effect; the substantial adverse effect and the long-term substantial adverse effect) and emphasised that when applying the legal test, it is not a case of whether a Claimant’s condition is long-term but, rather, whether the substantial adverse impact on their ability to carry out day-to-day activities is itself long term.

More specifically, this particular case is a helpful reminder to employers as to the types of situation where they may be purported to have constructive knowledge of a disability and, more importantly, where they might not.

A full transcript can be found here: https://www.gov.uk/employment-appeal-tribunal-decisions/mr-david-seccombe-v-reed-in-partnership-ltd-ea-2019-000478-oo-previously-ukeat-slash-0213-slash-20-slash-oo

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