The Claimant, who is a disabled person for the purposes of the EqA 2010 by reason of mental health impairments, worked part-time for the Respondent but did not disclose any of her health issues to the Respondent when she commenced her employment. She had a very poor attendance record during her 14 months of employment, and she was dismissed because she could not be depended on, in view of her poor attendance and timekeeping. The Claimant brought a claim of disability discrimination under s 15 EqA 2010, which the ET upheld. The Respondent appealed on the grounds that (1) the ET erred in its approach to the Respondent's constructive knowledge of the Claimant's disability, (2) the ET erred in finding that the dismissal was not justified, (3) the ET failed to properly apportion loss, and (4) the ET erred in its approach to the assessment of loss (applying Abbey National Plc and another v Chagger).

The EAT held, in relation to the first ground of appeal, that the ET had failed to apply the correct test, asking itself only what more might have been required of the Respondent in terms of process without asking what it might then reasonably have been expected to know; on that basis, even if the Respondent could reasonably have been expected to do more, it could not reasonably have been expected to have known of the Claimant's disability. Accordingly, the appeal would be allowed and the ET's judgment substituted with the finding that the Claimant's claim was dismissed.