Under Section 15(2) of the Equality Act 2010, an employer has a defence to a claim of disability discrimination if it can show that it did not know, and could not reasonably have been expected to know, that the claimant had the disability in question. The Employment Appeal Tribunal (EAT) recently heard an appeal against a decision of the Employment Tribunal (ET) that an employer had met this test (Godfrey v NatWest Market plc).

A man brought a disability discrimination claim against a bank after it allegedly refused to consider him for a number of roles between 2017 and 2019. He had autistic spectrum disorder (ASD) and was therefore disabled under the Act. He claimed that the bank had been aware of the relevant facts of his disability due to its experience of his behaviour when he had previously worked for it between 2006 and 2011. He alleged that colleagues had made various remarks about his demeanour and ability to socially integrate. However, he was only diagnosed with ASD in 2018.

The ET unanimously found that the bank had no actual knowledge of his disability. By a majority, it also concluded that there was nothing that would reasonably have put the bank on notice of his disability and that he would not have cooperated with any attempt to investigate matters further. The bank therefore could not reasonably have been expected to know of his disability. The man appealed to the EAT, arguing that the ET had focused on his diagnosis rather than the bank's knowledge of the facts of his disability, and had therefore applied the wrong legal test.

The EAT considered that the language used in the ET majority's reasoning suggested it had asked whether the bank might reasonably have been alerted to the possibility that the man had ASD specifically, rather than some mental impairment in general. While acknowledging that references to ASD might have been intended as a convenient shorthand, the EAT could not be satisfied that the ET had applied the correct legal test. Its decision on that point was therefore unsafe.

However, the EAT noted that the ET had gone on to consider what would have happened if the bank had made further enquiries. The finding that the man would have resisted any suggestion that he undergo an assessment was a finding of fact that was open to the ET. As such, the ET was entitled to conclude that the bank did not have constructive knowledge of his disability.