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3 May 2013

Employer had no knowledge of candidate’s disability

The Employment Appeal Tribunal (EAT) has recently considered the question of whether an employer had knowledge of the claimant’s disability, to determine whether he could proceed with his claim for disability discrimination. 

Facts

P, a pharmacist, brought a claim for direct disability discrimination against Lloyds Pharmacy Ltd when he was rejected for a position of pharmacy manager.

P had previously (in 2008) been offered and accepted the role as a locum pharmacist for Lloyds.  At that interview, he had informed the area manager (Mr Butt) that he had bipolar disorder.

In 2011, P applied for a full-time job with Lloyds.  He listed his bipolar disorder on his equal opportunities questionnaire. However, Lloyds always removed the questionnaires before preparing a shortlist, and did not at any time make them available to interviewers. Mr Butt e-mailed one of the recruitment managers giving his views on his experiences with P, stating that P had been aggressive, confrontational and always late for work.  The e-mail did not mention P’s disability.

Lloyds interviewed P, but he scored far below the minimum score even for a newly qualified role, and nowhere close to the score needed to be considered for the managerial role available.

After the interview process, Mr Butt asked one of the interviewers to give feedback to P by phone. The interviewer subsequently informed Mr Butt that P had queried why he was the one giving feedback and complaining, amongst other things, that the interview had not been conducted properly.  There was no mention of P’s disability.

The employment judge struck out P’s discrimination claim on grounds that it had no reasonable prospect of success. There was nothing to indicate that the interviewers knew anything or could reasonably be expected to have known anything about his disability.

P appealed to the EAT.

Decision

The EAT dismissed the appeal and upheld the employment judge’s decision to strike out P’s claim. The EAT confirmed that, for the purposes of deciding whether to strike out a claim, they must assume the claimant’s version of events is correct where there is any dispute.

However, on reviewing the facts, the EAT held that they could not in any way draw a reasonable inference that the interviewers knew that P suffered from bipolar disorder. They also could not infer that Mr Butt believed that he was unsuitable as a locum pharmacist because of his bipolar disorder, or that it in any way contributed to Mr Butt’s dissatisfaction with him in that role.

The EAT reiterated that discrimination cases should only be struck out in exceptional cases.  The correct approach is to “take the case at its reasonable highest and then decide whether it can succeed”.  The EAT decided that it should not allow the case to proceed purely on the basis that something might subsequently turn up in evidence.

Comment

With changes in the pipeline to strengthen the power of tribunals to weed out unmeritorious claims at an early stage, this case is a good illustration of the fact that where appropriate, tribunals can already strike out claims with no reasonable prospect of success.

An employer’s knowledge of an individual’s disability is often disputed in the context of recruitment particularly where, as in this case and following accepted best practice, equality questionnaires are removed from the decision-making process.  What makes this case interesting is the fact that the area manager had previously been aware of the individual’s disability, but the tribunal was satisfied that this had not affected the respondent’s decision-making process.

A claim for direct disability discrimination (such as this) can only succeed if the respondent knew of the disability at the relevant time, as the disability must form part of the respondent’s “conscious or subconscious reason” for the less favourable treatment.  In claims for discrimination arising out of a disability, or for failure to make reasonable adjustments, the respondent is liable if it knew or could reasonably be expected to know of the disability, which is arguably easier to prove.

A copy of the EAT judgment is available here