In the recent case of Godfrey v NatWest Market plc [2024] EAT 81 the Employment Appeals Tribunal ruled that a former employer did not have either actual or constructive knowledge of the employee’s post-employment diagnosis of autism spectrum disorder (ASD).
What are the facts of the case?
NatWest had originally employed Mr Godfrey from 2006 – 2011. Mr Godfrey unsuccessfully applied for various positions at NatWest between 2017 – 2019. Mr Godfrey was diagnosed with ASD in 2018 and brought claims of direct disability discrimination and discrimination arising from disability against NatWest arising from the unsuccessful applications.
To discriminate against an employee, an employer must have actual knowledge of the alleged disability, or constructive knowledge (where they might reasonably be expected to know) of the disability. Mr Godfrey contended that even though his official diagnosis had only been confirmed after his original employment with NatWest, they ought to have known from his previous employment that he had issues with communication and social interaction.
The Employment Tribunal found that NatWest had no actual knowledge of Mr Godfrey’s alleged disability and likewise there was nothing which might reasonably have put them on notice. They also made a finding that even if NatWest had tried to investigate with Mr Godfrey he would have been unlikely to cooperate.
Mr Godfrey appealed to the EAT arguing that the original Tribunal had failed to properly apply the test for constructive knowledge.
What was the outcome of the case?
The appeal was unsuccessful as the EAT found that the original Tribunal had directed itself to the correct test and considered the wider context of what might have happened if the employer had made a reasonable enquiry.
What are the lessons for employers?
It is becoming considerably more common for employees to declare a diagnosis of a neurodiverse condition, to seek a diagnosis in later life or to believe that they may have a neurodiverse condition without a diagnosis.
Where an employee reports their belief that they may be neurodiverse or where there are observable signs that they might be, employers should consider:
- Whether to ask the employee directly about whether they are neurodiverse
- Whether to be more indirect instead and ask about whether they need any relevant support at work for certain activities which might be difficult for them
- Seek the employee’s consent to a medical report if necessary.
- Discuss and put in place any adjustments.
