In order to prove disability discrimination under the Equality Act, workers have to show that the impairment has an “adverse effect on their ability to carry out normal day-to-day activities”. In Mutombo-Mpania v Angard Staffing Solutions Ltd, the Employment Appeal Tribunal (EAT) held that this involves providing evidence listing the specific activities that the worker could not undertake because of the alleged disability.
When filling in his application form for Angard Staffing, a recruitment agency which provided casual staff for Royal Mail, Mr Mutombo-Mpania did not indicate that he had a disability, although he had been diagnosed as suffering from essential hypertension in 2011.
From November 2015 to November 2016 he worked for Royal Mail on a late shift which finished at 10pm. In the run up to Christmas 2016 he accepted a night shift booking covering the period from 21 November until 13 January 2017. However, prior to starting the booking he emailed Angard explaining that he could not work night shifts because of his “health condition”.
After failing to attend work on four occasions between 21 November and 15 December 2016, the agency told Mr Mutombo-Mpania that the Glasgow mail centre no longer wished him to work for them. He replied saying this was unfair as he had told the agency about his health condition and that, in any event, he had never asked to be transferred from days to nights in the first place.
He brought a number of tribunal claims, including one for disability discrimination.
Dismissing his claim, the tribunal found that Mr Mutombo-Mpania had failed to demonstrate how his health condition had a “substantial adverse effect on his ability to carry out normal day to day activities”, not least because he had not provided any evidence of any activities that had been impacted nor in what way. In effect, he had given “no insight into any limitations on his day to day activities caused by the physical impairment of essential hypertension”.
Even if he had established that he was a disabled person under the Equality Act, the tribunal held that his employer could not have reasonably been expected to know as he had not mentioned it when he joined. Nor could his employer have had constructive knowledge of his disability as he had previously worked night shifts and voluntarily accepted the block booking. Although the agency should have made further inquiries once it became aware of his health condition, the tribunal held that this was not enough to infer constructive knowledge of disability.
The EAT agreed with the tribunal holding that it was not enough for Mr Mutombo-Mpania to refer to headaches, tiredness and so on without linking those symptoms to his inability to carry out the activity he had been undertaking for the agency or his alleged inability to carry out regular night shifts. In particular, he had not listed the specific activities that he could not do or could only do with difficulty because of the impact of his hypertension. The burden of proof was on him and he had failed to discharge it.
As for the tribunal finding that the agency should have made further inquiries, it agreed with the employer that this was simply to ascertain information about the “health condition” that Mr Mutombo-Mpania had informed them about. This was not the same thing as a disability and did not therefore represent a finding that the employer had failed to take reasonable steps to ascertain whether he had a disability or not.