The Employment Appeal Tribunal (EAT) has upheld an employment tribunal's decision that an employer did not have actual or constructive knowledge of a former employer's disability in Godfrey v NatWest Market plc.
Mr Godfrey was employed by the Royal Bank of Scotland plc (which subsequently became NatWest Market plc) from 2006 until 2011. Between 2017 and 2019 he applied for a number of vacancies but was unsuccessful, and was formally diagnosed with Asperger's syndrome in 2018. He brought claims of direct disability discrimination and discrimination arising from disability in relation to what he claimed was a refusal to consider him for the vacancies he applied for. Mr Godfrey argued that those who had worked with him would have been fully aware of his difficulties with communication and social interaction and, as a result, NatWest was aware of the facts of his disability.
The tribunal heard evidence from Mr Godfrey's friends and a former NatWest colleague and found that NatWest did not have actual knowledge of Mr Godfrey's disability. It also concluded that NatWest did not have constructive knowledge of his disability and that, even if NatWest had sought to investigate the situation further, Mr Godfrey would not have co-operated.
On appeal the EAT found that there was limited evidence of Mr Godfrey's behaviour during his employment that would have alerted NatWest to his disability and that the tribunal had been right to conclude that NatWest did not have actual knowledge of his disability. In terms of whether it had constructive knowledge, the EAT found that the tribunal had been wrong to look at whether NatWest might reasonably have been expected to know, after reasonable enquiry, that Mr Godfrey had an autistic spectrum disorder, rather than whether he had a more general mental impairment. However, as the tribunal had found that Mr Godfrey would have refused to co-operate with any assessment it had been entitled to conclude that NatWest did not have constructive knowledge of disability.
Take note: Although in this instance the employer was found not to have constructive knowledge of the employee's disability, it is nonetheless the case that if there is evidence of possible mental or physical impairments an employer should try to ascertain whether the employee may be disabled. If, however, the employee refuses to co-operate with any assessment of their condition (or would be likely to refuse to do so as in this case) then it may be difficult for them to fix the employer with constructive knowledge of any disability which is subsequently diagnosed.
