Constructive knowledge of Neurodiversity – a reminder of the correct test to be applied

The EAT handed down its judgment in the case of Godfrey v Natwest Markets plc [2024] EAT 81 on 24 May 2024.

The EAT found that the ET had erred in applying a higher test when considering the employer’s constructive knowledge of a former employee’s disability.

The employee’s appeal was nevertheless dismissed in circumstances where the ET had gone on to consider the counterfactual. The ET had been entitled to find that the employee would have refused any investigations and, in turn, the employer could not reasonably have been expected to have knowledge of the employee’s disability.

Background:

The Claimant, Mr Godfrey was employed by the Respondent, Royal Bank of Scotland plc (subsequently NatWest Market plc) from August 2006 until his resignation in January 2011.

Between 2017 and 2019, he applied for a number of vacancies within the Respondent’s ‘Super Sovereign and Agency (SSA) Team’ and was unsuccessful.

He was formally diagnosed with Asperger’s syndrome in 2018, although he contended that those who had worked with him would have been fully aware of his communication and social interaction difficulties and thus the Respondent had been aware of the relevant facts of his disability.

He brought claims of direct disability discrimination and discrimination arising from disability arising from the Respondent’s alleged failures to consider him for the relevant vacancies.

The Claimant was found to be a person with a disability by reason of his Asperger’s Syndrome, an autism spectrum condition, following a preliminary hearing in August 2020.

At a further preliminary hearing in February 2021, for the purposes of his s.15 claim, the Claimant asserted that the “something arising” in consequence of his disability was that he ‘needed quiet and space and would not engage in conversation or social interactions in the same way as others.’

The Respondent denied the claim asserting, amongst other grounds, that it had no knowledge of the Claimant’s disability.

A Ltd v Z[1]:

Her Honour Judge Eady QC had explained, at paragraph 38 and 39 of A Ltd v Z that:

‘38. A Respondent will avoid the liability that would have otherwise arise under section 15 EqA if it can show that it did not know, and could not reasonably have been expected to know, of the complainant’s disability. A finding that the Respondent does not have actual knowledge of the disability is thus not the end of the ET’s task; it must then go on to consider whether the Respondent had what (for shorthand) is commonly called “constructive knowledge”; that is whether it could – applying a test of reasonableness – have been expected to know, not necessarily the Claimant’s actual diagnosis, but of the facts that would demonstrate that she had a disability – that she was suffering a physical or mental impairment that had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.

39. As to what a Respondent could reasonably have been expected to know, that is a question for the ET to determine. The burden of proof is on the Respondent but the expectation is to be assessed in terms of what was reasonable; that, in turn, will depend on all the circumstances of the case.’

In Godfrey, it was common ground that the legal principles that should inform the ET’s approach to the determination of constructive knowledge were as summarised at paragraph 23 of A Ltd v Z:

(1) There need only be actual or constructive knowledge as to the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment, see York City Council v Grosset [2018] ICR 1492 CA at paragraph 39.

(2)  The Respondent need not have constructive knowledge of the complainant’s diagnosis to satisfy the requirements of section 15(2) ; it is, however, for the employer to show that it was unreasonable for it to be expected to know that a person (a) suffered an impediment to his physical or mental health, or (b) that that impairment had a substantial and (c) long- term effect, see Donelien v Liberata UK Ltd UKEAT/0297/14 at paragraph 5, per Langstaff P, and also see Pnaiser v NHS England & Anor [2016] IRLR 170 EAT at paragraph 69 per Simler J.

(3)  The question of reasonableness is one of fact and evaluation, see Donelien v Liberata UK Ltd [2018] IRLR 535 CA at paragraph 27; nonetheless, such assessments must be adequately and coherently reasoned and must take into account all relevant factors and not take into account those that are irrelevant.

(4)  When assessing the question of constructive knowledge, an employee’s representations as to the cause of absence or disability related symptoms can be of importance: (i) because, in asking whether the employee has suffered substantial adverse effect, a reaction to life events may fall short of the definition of disability for EqA purposes (see Herry v Dudley Metropolitan Council [2017] ICR 610 , per His Honour Judge Richardson, citing J v DLA Piper UK LLP [2010] ICR 1052 ), and (ii) because, without knowing the likely cause of a given impairment, ” it becomes much more difficult to know whether it may well last for more than 12 months, if it is not [already done so] “, per Langstaff P in Donelien EAT at paragraph 31.

(5)  The approach adopted to answering the question thus posed by section 15(2) is to be informed by the Code , which (relevantly) provides as follows:

“5.14  It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a ‘disabled person’.

5.15  An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.”

(6)  It is not incumbent upon an employer to make every enquiry where there is little or no basis for doing so (Ridout v TC Group [1998] IRLR 628; SoS for Work and Pensions v Alam [2010] ICR 665 ).

(7)  Reasonableness, for the purposes of section 15(2) , must entail a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee, as recognised by the Code .

ET decision:

The ET observed that it had limited evidence of the Claimant’s impairment whilst working for the Respondent:

It noted that the Claimant, in his particulars of claim “describes being confronted with severe challenges when interacting with and communicating with others, particularly where he feels overwhelmed or perceives a hostile environment” (ET paragraph 18).

However, he gave no detail of any such challenges in the workplace whilst employed by the Respondent.

Similarly, the ET noted that in his witness statement, he suggested that he “might be less fun on the desk, at times need space and quiet (especially when considering [his] portfolio) and often took breaks from [his] desk to do so, and would not engage in conservation or social interactions in the same way as others.” (ibid)

Again, however, no detail was added.

The ET observed that ‘While, according to the Code and the principles in A Limited, it is for the Respondent to show that it did not have knowledge rather than for the Claimant to show that it did, the Respondent clearly could not have called everyone who worked with the Claimant between 2006 and 2011. The Claimant needed to give some context for the Respondent to know where to start.’ (ET paragraph 20)

In his claim form, the Claimant had made reference to a manager who had commented that there was a perceived issue with the Claimant’s ability to socially integrate and another manager who had told him that that year’s bonus would have been double if he was easier to converse with. (ET paragraph 21)

He had also referred to an executive assistant who had told him he needed somebody to look after him and that he was strange and further, two peers from the 2006 graduate programme, one of whom had said “the way your brain operates is very strange” and the other had told the Claimant “you are (very) weird.” (ET paragraph 22)

The Claimant had not elaborated on this in his statement, had not named the individuals referred to nor did he put the comments in context.

In his claim form he stated that, although he had only become aware of the impact of his condition since the diagnosis, those who sat around him in the workplace would have been aware of the daily communication and social interaction problem. However, he did not name any of these colleagues.

Whilst, in his oral evidence, the Claimant did name names, he had not referred to these individuals in his witness statement and he had not sought to call them to give evidence.

In his statement, he had stated that the condition led to some colleagues describing him as ‘psychotic’, ‘very strange’, ‘mad’, ‘bizarre’ and ‘extremely odd’ but he had not ascribed these comments to any one person or persons.

The ET did attempt, during the Claimant’s evidence, to elicit some context from him in respect of the specific comments he had referred to in his statement, however the Claimant was only able to provide two examples.

In terms of witness evidence, the Claimant relied on a short, signed witness statement from one of his former managers at the Respondent (having intended to call him). The statement contained no specifics regarding the impairments noted or adjustments made whilst working with the Claimant.

The ET also heard from two witnesses for the Claimant; one a university friend and one a former employee of the Respondent who had not worked with the Claimant whilst they were both employed by the Respondent but had worked with the Claimant subsequently at another company.

Having heard the evidence, the ET considered that the working hours and pressures that the Claimant was subject to at this company were much greater than those at the Respondent and as such it could not be concluded that his behaviour would have been replicated at his earlier employment with the Respondent.

The Respondent’s only witness had worked on the same trading desk as Mr Godfrey between 2008 and 2011 and it was his evidence that the Claimant did not stand out.

The ET also had regard to the documentary evidence that was available from the time of the Claimant’s employment with the Respondent.

The ET found, unanimously, that the Respondent had no actual knowledge of the Claimant’s disability.

In respect of constructive knowledge, the ET found by majority decision that the Respondent could not reasonably have known of the Claimant’s disability.

The ET did, importantly, and in line with A Ltd v Z, go on to ask itself:

‘52. . . . what the outcome might have been if management or HR personnel at the Respondent had observed the Claimant’s differences, taken more account of them and realised that they might be the result of a mental impairment or autistic spectrum disorder . . ..’

And found, by a majority decision that:

‘54. . . . there was no factor that would have caused anyone at the Respondent without in-depth training in autistic spectrum disorders to have reached such a conclusion. It would be unreasonable to expect an employer without such training to do so, given that Mr Hammacher, who has known the Claimant for many years and observed him in social situations where his behaviours manifested themselves, and who is medically qualified, not to have done so.’

And

‘74. . . . There was no ‘trigger event’ while the Claimant worked at the Respondent that would have caused its managers to make the referral, which the majority considers the Claimant would have resisted. The authorities confirm that it is not incumbent on an employer to make every enquiry when there is little or no basis to do so.’

EAT Decision:

Following a rule 3(10) hearing, the Claimant’s appeal proceeded on the single ground that the ET had failed to apply the correct legal test; focusing on the particular diagnosis of his disability rather than the question of the Respondent’s knowledge (actual or constructive) of the relevant factual features of that disability.

For the Claimant, it was argued that the ET had focused on whether the Respondent had knowledge of the Claimant’s diagnosis and not on the salient ingredients of s.6 EqA and had thus applied the wrong test throughout, citing the ET’s references to the diagnosis of the Claimant’s disability within its reasoning:

• ET paragraph 44: ‘. . .this would not be sufficiently unusual, . . . to alert an employer to the fact that an employee is a person with Asperger’s or to make enquiries about an autistic spectrum disorder.’
• ET paragraph 45: ‘we do not find that an employee being sensitive would lead an employer to consider that they had Asperger’s . . . it does not lead us to the conclusion that Mr Muscatt found or should have considered the Claimant’s behaviour to be consistent with Asperger’s.’
• ET paragraph 54: ‘. . . the majority of the panel concluded that there was no factor that would have caused anyone at the Respondent without in-depth training in autistic spectrum disorders to have reached such a conclusion. . ..’
• ET paragraph 66: ‘. . . There is also evidence that Mr Balax really listened to or took in what the Claimant was telling him about his diagnosis. . ..’
• ET paragraph 68: ‘. . . On the . . . balance of probabilities however the majority finds that they were not aware of his Asperger’s and nor would it have been reasonable to expect them to be.’

For the Respondent, it was argued that the ET had reminded itself of the correct test as laid down in A Ltd v Zand had applied it when considering the Claimant’s behaviours and all the evidence that might assist in determining how matters might have appeared to the Respondent.

It was acknowledged that the wording of the ET’s reasoning went ‘a little further than it ought’ (an example being ET paragraph 54 as set out above) but this didn’t detract from the reasoned consideration given elsewhere which focused on knowledge of the factual features rather than knowledge of the disability itself.

Counsel for the Respondent contended that ‘it was of note that there was no evidence before the ET that went to knowledge of impact on day-to-day activities, or long-term nature, or of any impairment being more than merely transient’ (EAT paragraph 44).

It was argued for the Respondent that references to the Claimant’s diagnosis was plainly just a convenient shorthand.

Having noted that the ET had reminded itself of the correct legal test, the Honourable Mrs Justice Eady DBE (P) also noted that:

‘49. …Consistent with the legal test it was required to apply, the ET carried out a detailed assessment of all the evidence available to see what would (or should) have been known by the respondent about how the claimant might have been affected by his disability. That its analysis reached back to 2006, notwithstanding that the claimant had no diagnosis of his condition until 2018, supports the view that the ET understood that it was concerned with the respondent’s knowledge (actual of constructive) of the facts constituting the claimant’s disability rather than the particular label that was to be attached to that disability upon its eventual diagnosis’. [additional emphasis added].

Thus Mrs Justice Eady found it tempting to adopt the Respondent’s approach to the passages relied upon by the Claimant ‘. . . as effectively using the diagnosis of the claimant’s disability as a shorthand for a finding that the requisite constituent facts – the existence of a mental impairment, with a non-trivial and long-term impact on the claimant’s ability to carry out normal day-to-day tasks – were not, and could not reasonably have been, known to the respondent. . . . the scope of the enquiry was certainly consistent with a focus on the manifestation (is any) or an impairment . . .’ (EAT paragraph 54).

However, Mrs Justice Eady, went on to find that ‘. . . the reasoning at no stage expressly answers the specific questions the ET was required to determine; namely: whether the respondent had demonstrated that it did not know, and could not reasonably have known, that the claimant suffered a mental impairment, with a non-trivial and long-term impact on the claimant’s ability to carry out normal day-to-day tasks’ (EAT paragraph 55).

‘the difficulty, however, is that the language used in the majority’s reasoning suggested that it reached that decision by imposing a requirement that the respondent had been put on notice that the claimant might have suffered from an autistic spectrum disorder. Contrary to the legal test it had earlier referenced, the ET majority’s reasoning at (for example) paragraphs 44 and 54 of the decision is focused on whether the respondent might reasonably have been put on notice of the particular medical diagnosis, rather than the question whether it might reasonably have been alerted to the need to make further enquiry about, more generally, the possible effects of some mental impairment.’ (EAT paragraph 59)

Accordingly, and notwithstanding the Respondent’s argument that this was just convenient shorthand, the EAT could not be satisfied, from the language used, that the ET in fact applied to the correct legal test.

However, as the ET had nevertheless gone on to consider the counterfactual; namely, what would have happened if the respondent had attempted to further investigate the cause of the Claimant’s behaviours and had found, on the evidence, that the Claimant would have resisted such attempts, (a finding against which there had been no challenge), the ET was entitled to find that the Respondent could not reasonably have been expected to have knowledge of the Claimant’s disability.

The Claimant’s appeal was therefore dismissed.

Suggested takeaways and practical considerations:

• This decision is, of course, fact sensitive concerning an employee whose interpersonal skills were not considered to fall short of what his employee expected and thus there was no need for it to attempt further investigations into his mental health. Nonetheless, employers need to be alert to the possibility of cases where an employee’s disability is not self-evident and may only become evident in certain situations or in relation to certain duties. Employers need also to be particularly alive to the possibility of cases where the employee themselves is not fully aware of their disability or perhaps may not consider themselves to be ‘disabled.’
• The decision should not be read as meaning employers shouldn’t consider their employees behaviours and consider whether further investigations or referrals should be explored.
• Whilst, in Godfrey the ET did not go on to consider further the reasons why the Respondent did not invite the Claimant to interview, they observed that its recruitment process was contrary to the Code of Practice and the lack of documented procedures and transparent competencies would likely lead some to believe that it is a protected characteristic which has led to their not being progressed and as such invite claims which may be challenging to defend.
• These observations serve as a warning to ensure that recruitment processes, from advertisement to selection for interview, are transparent and clearly documented.

[1] UKEAT/0273/18/BA