Jennings v Barts and the London NHS Trust UKEAT/0056/12/DM

C’s mental impairment had been recognised but mislabelled by R. C had been dismissed under R’s
absence policy. C brought claims for disability-related discrimination and failure to make reasonable
adjustments. The ET held that R had actual or constructive knowledge of C’s disability and that there had
not been a failure to make reasonable adjustments by applying the sickness procedure to C. C appealed
and R cross-appealed.

Facts

C was dismissed from his employment as a senior IT support engineer due to his poor attendance record.
He had been absent for a variety of reasons, not all related to his disability. In Sept 2007 he saw a
psychiatrist who formulated the view he was suffering from PTSD arising from an RTA, a diagnosis which
was reported to the D's occupational therapists. The psychiatrist also reported other symptoms, including
anxiety, depression and longer term personality problems. D enforced its long-term absence policy and
dismissed C in January 2008. By the time C was dismissed he had not completed a stress at work
questionnaire, which he had been asked to complete on repeated occasions. R had accepted that C had a
disability but denied that it had actual or constructive knowledge of C's disability at the relevant time. The
ET disagreed. R appealed this finding and C appealed a finding that he was not entitled to claim an
exemption from the short-term sickness policy as a reasonable adjustment

Held

R argued that the ET had applied a test of “hindsight” and that knowledge of a major personality disorder
cannot be ascribed to R simply as a result of witnessing a collection of symptoms. The EAT referred to the
observations and resources of the Occupational Health Department at R. They had access to the expertise
of the treating psychiatrist and had obtained information from her. Moreover, although PTSD was an
erroneous diagnosis, it was a species of mental impairment and if a wrong label is attached to a mental
impairment a later re-labelling of that condition is not diagnosing it for the first time, it is giving the same
impairment a different name. Accordingly, the ET had not abused hindsight but had come to the
conclusion that there was sufficient information available to R that C was suffering from a mental
impairment which had a substantial and long term adverse affect on his normal day to day activities. The
cross-appeal was dismissed. The EAT also considered the burden of proof as explained in Project
Management Institute v Latif [2007] IRLR 579, explaining that that case does nothing more than require
the Claimant to raise the reasonable adjustments that he or she thinks should have been made with some
specificity; it does not shift the burden onto the Claimant. The ET’s judgment addressed reasonable
adjustments to a sufficient extent and so C’s appeal was dismissed.

Comment

There is real need for some clarification of the question of what it means to know that a person is
disabled. On the one hand the EAT has held that an ET cannot make judgments about a person's disability
without expert medical evidence (see RBS v Morris (2012/Q1/p.8). On the other the EAT, as in this case, is
happy to impose constructive knowledge of a mental impairment on a lay person arising out of their
unqualified observations. See also Gallop v Newport City Council (2013/1/p.7) and ZH v Commissioner of
Policefor the Metropolis (2013/1/p.19). The case of Gallop may help to resolve this issue and is due to be
heard in the Court of Appeal. We will report the decision when it is handed down.