Mr B Kungwengwe v First MTR South Western Trains Limited — 2019

Mr Kungwengwe was an agency worker supplied by STM to work for First MTR South Western Trains Limited at Kingston Station for a few days in March 2018. After a dispute with his supervisor, Mr Akpakly, about customer control and cleaning duties, he raised a grievance on 18 March 2018. The tribunal recorded that the grievance did not mention disability or any health condition, and that the only health-related point that emerged in the later investigation was a reference to a bad back, which was not one of the conditions relied on in the claim.

The tribunal applied the knowledge principles in Gallup v Newport City Council and A Ltd v Z, and referred to paragraph 5.15 of the EHRC Code of Practice on Employment. It held that the respondent did not actually know of any disability and was not under a duty, on the evidence before it, to have known. The tribunal accepted evidence from Mr Akpakly, Mr Burgess and Ms Hutcheson that no disability information had been passed on in the ordinary course, and it gave weight to the absence of paperwork supporting the claimant's account of an earlier February 2018 meeting at STM.

The tribunal found that there was no basis to conclude that the respondent ought reasonably to have known that Mr Kungwengwe had a physical or mental impairment, still less that it had a substantial and long-term adverse effect on day-to-day activities. It noted that he did not say he had told the respondent directly about depression or the other conditions relied on, that he continued working for some months at another station, and that no reasonable adjustments were requested or made. On that basis, the tribunal concluded that the respondent lacked the required knowledge for the disability complaints.

Because the claims for harassment and direct discrimination on grounds of disability failed on knowledge, the tribunal dismissed both complaints. It did not make any monetary award, and no remedy was recorded.