The Claimant sought to pursue complaints of disability discrimination under sections 13 and 15 Equality Act 2010, in relation to what he contended had been the Respondent’s refusal to consider him for various appointments in the period 2017-2019. The Claimant was disabled, within the meaning of the EqA, by reason of having the autistic spectrum condition, Asperger’s syndrome; it was his case that the Respondent had been aware of the relevant facts of his disability due to its experience of his behaviours when it had previously employed the Claimant in the period 2006-2011. Although he had only known of the impact of his condition since his diagnosis in 2018, the Claimant contended that those who worked with him would have been fully aware of his communication and social interaction problems on a daily basis. For its part, the Respondent argued that it did not know, and could not reasonably have been expected to know, of the Claimant’s disability. The ET agreed with the Respondent and dismissed the Claimant's claim. The Claimant appealed.

The EAT dismissed the appeal. On the ET’s findings of fact, there was limited evidence of any behaviours on the part of the Claimant that would have alerted the Respondent to the relevant factual constituents of his disability during his earlier period of employment. The ET had correctly directed itself to the relevant legal test (as set out in A Ltd v Z [2020] ICR 199) and had permissibly (unanimously) concluded that the Respondent had not known that the Claimant had a mental impairment that amounted to a disability. In considering the further question, as to what the respondent might reasonably have known, the reasoning of the ET majority suggested, however, that it had applied a higher test: asking whether the Respondent might reasonably have been put on notice of the need to make further investigation into whether the Claimant suffered from an autistic spectrum disorder, rather than whether it might reasonably have been aware of the need to make enquiry as to the possible effects of a more general mental impairment. To that extent the ET majority’s decision was unsafe. The majority had, however, then gone on to consider the counterfactual, asking itself what would have happened had the Respondent made such further enquiry, but finding as a fact that the Claimant would have refused any assessment. In the circumstances, the ET majority had been entitled to conclude that the Respondent had demonstrated that it had neither actual nor constructive knowledge of the relevant facts of the Claimant’s disability.