Disability Discrimination and the burden of proof – day to day activities

A recent disability discrimination case has reiterated to all Employment claim solicitors and anyone considering a claim under the Equality Act 2010 based on disability discrimination, that it is for the employee to prove that the disability in question has a long term and substantial adverse impact on his or her ability to carry out day to day activities. In Mutombo-Mpania v Angard Staffing Solutions Ltd the claimant failed to provide the Employment Tribunal with any evidence of how his disability impacted on his day to day activities. His claim failed – although it is open to speculation that with a top employment law firm on board, the outcome may have been very different. The case also looks at the question of constructive knowledge of disability, and is a reminder that in many cases, while it may be attractive for a claimant to keep costs down as a litigant in person, there are often good reasons to engage the best employment law firm available in Employment Tribunal proceedings.

Impact on day to day activities

Proving disability discrimination in the Employment arena, as every UK Employment lawyer knows, requires the fulfilment of a number of requirements. One of these is the requirement to demonstrate that the physical or mental impairment suffered by the employee has a ‘substantial and long term adverse effect’ on the employee’s ability “…to carry out normal day to day activities.” As UK employment lawyers will explain, the employee has to bring evidence to demonstrate the effect of the condition on ‘normal day to day activities’. Without proof of this, as experts in employment law for employees will advise, the individual is not ‘disabled’ within the meaning of the Equality Act 2010, and so cannot rely on the protections against discrimination.

The facts in Mutombo-Mpania v Angard Staffing Solutions Ltd

The employee in this case was engaged by Angard Staffing Solutions to work for Royal Mail on assignments where he was required. He had not declared his condition (Essential Hypertension) on either the application from or on a subsequent health questionnaire, and worked for several years with no problem, often on late shifts which finished at 10 p.m. Medical evidence related to the medication he was taking and the symptoms he suffered but no mention was made of how this impacted on his ability to carry out normal day to day activities, save that, in the context of the events that led to the claim of disability discrimination, he advised Angard in November 2016 that “…my health condition does not allow me to do regular night shifts”.

In November 2016, Royal Mail advised Angard of a change in their requirements which meant more night shift staff were required. The claimant was offered, and accepted, a booking to work on the night shift (10 p.m. – 6.00 a.m.) between 21 November 2016 and 13 January 2017. On 16th November he emailed Angard saying that his ‘health condition’ meant that he could not work regular night shifts. He asked that his name be taken off the night shift and moved back to the late shift (finishing at 10.00 p.m.), and further queried his shifts. He was absent on 4 occasions between 21st November and 15th December, absences which Angard did not know about, and Royal Mail then advised that they no longer wished him to continue working on their assignments.

No evidence of an impact on his ability to carry out day to day activities

The Employment Tribunal found that the claimant had provided no evidence that the condition he suffered from, Essential Hypertension, had a substantial effect on his ability to carry out day to day activities. It was accepted that he had a long term condition. The claimant argued that night shifts were normal day to day activities, and that he had explained that he did not wish to work a regular night shift, but made no real link between the condition and why it meant that he could not work night shifts. The Employment Appeal Tribunal agreed that the claimant had not fulfilled the evidential burden of proving that the Essential Hypertension impacted on normal day to day activities. The Employment Appeal Tribunal referred to the case of Chief Constable of Dumfries and Galloway Constabulary v Adams [2009] ICR1034, a case in which it had previously been determined that a night shift amounted to a normal day to day activity. In confirming that, the court elaborated on the fact that the claimant in that case, Mr Adams, suffered from particular mobility problems between the hours of 2.00 a.m. and 4.00 a.m., and that when on night shift, he was expected to be carrying out ‘normal’ activities such as dressing, walking upstairs, driving and undressing, all of which were impacted by his condition (MS). In contrast, in this case, the claimant did not bring any evidence to show which particular activities were difficult for him on the night shift.

Constructive knowledge of the disability

Another interesting aspect of the case was the question of whether Angard had constructive knowledge of the claimant’s disability. As already mentioned, the claimant had made no mention of the condition on his application form, or in a subsequent medical questionnaire. He argued that as Angard had failed to take any reasonable steps to establish whether he was disabled, the company had constructive knowledge of the disability. Although the Employment Appeal Tribunal did not need to make any findings on constructive knowledge, because the employee had failed to prove that there was a disability, it went on to comment on the issue in this case. It thought that although the email in November 2016 referring to a ‘health condition’ should have put Angard on notice to make further enquiries. However, the fact that the employee had not referred to the issue in his application form or medical questionnaire, and that he had accepted the block booking for the night shift “…all militated against any constructive knowledge on the part of the employer that the claimant was a disabled person rather than someone with a health condition but not disabled.”

Even if the employee had been ‘disabled’ within the meaning of the Equality Act 2010, in this case, on the facts, the employer did not have knowledge, either direct or constructive, of that disability.

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