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Establishing Disability – Burden of Proof and Constructive Knowledge

MH
BY Miranda Hughes
Employment Law & HR

In Mutombo-Mpania v Angard Staffing Solutions Ltd, the EAT considered whether disability had been established by the Claimant. 

Angard, the Respondent in this case provided casual staff to the Royal Mail Group. Mr Mutombo-Mpania, the Claimant, began work for them in late 2015. Following four instances of non-attendance between 21 November and 15 December 2016, he was advised that his services were no longer required. He raised a number of claims in the Employment Tribunal, one of which was for disability discrimination. A Preliminary Hearing was arranged to establish whether Mr Mutombo-Mpania was a disabled person under the Equality Act 2010.

When Mr Mutombo-Mpania had applied for work with the Respondent, he had indicated on the application form that he did not consider himself to have any form of disability. As a Flexible Resourcing Employee, his contract of employment states that there were no normal hours of work and that they would vary depending on the needs of the employer and the availability of work. There was no obligation to offer work or to accept it. For the first year of employment, Mr Mutombo-Mpania had worked a late shift finishing at 10pm. However, in the run up to Christmas 2016, he was offered and accepted a block of night shifts.

In November 2016, the Mr Mutombo-Mpania emailed his employer advising that he had previously been on a late shift but that his name was on the night shift lift. He said that his health condition would not allow him to work regular night shifts and he requested to be taken off night shifts. He was taken off these shifts for the rest of the week but the arrangements for the remainder of the block were not clarified. He subsequently failed to show up for four night shifts and was removed from the list.

Mr Mutombo-Mpania has Essential Hypertension which was diagnosed in 2011. Mr Mutombo-Mpania doctor confirmed this diagnosis in a letter from March 2017 and stated that the claimant was prescribed medication for this. His symptoms included headaches, fatigue, breathing difficulties and a lack of confidence.

In the Preliminary Hearing, the Tribunal concluded that he was not a disabled person and, in any event, the Respondent did not know and could not have reasonably known of his disability. Although the Employer was under a duty to ask questions, Mr Mutombo-Mpania had only vaguely referred to a medical condition. Additionally, he had previously denied having a disability and had worked night shifts before.

The EAT dismissed the Mr Mutombo-Mpania appeal of this decision on two grounds. The Claimant had failed to discharge the burden of proof on him to demonstrate a substantial adverse effect; he had not led any evidence at Tribunal on how his condition would affect his day to day activities. Further, that the Tribunal was entitled to reach the decision it had on knowledge of the dismissal.

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