Opinion

Disability and an employer's knowledge?

26th January 2018

In the case of Donelien v Liberata UK the Court of Appeal considered whether an employer should be treated as knowing that an employee is disabled when medical evidence incorrectly regards the employee as not being disabled.

Ms Donelien was a court officer employed by Liberata UK Limited for whom she had worked for almost 11 years before being dismissed in October 2009. The reason for her dismissal was due to her persistent short-term absences and failure to comply with the absence notification procedure.

Ms Donelien claimed the reason for her absences were due to the fact she suffered from a variety of medical conditions which included hypertension and “work-related stress”. However she failed to inform Liberata of her absences or to allow Liberata’s occupational health service to contact her GP. Ms Donelien was absent for a total of 128 days in the final year of her employment and provided various reasons for her absence.

Liberata arranged for Ms Donelien to be assessed by their occupational health service to see if there were any illnesses causing her to be absent. The report did not confirm her to be disabled, but did not answer all the questions that Liberata had asked.

Liberata obtained a more detailed report from a second doctor who had not met Ms Donelien in person but had discussed her issues with the doctor who had originally assessed her. Again, this report did not address all the questions asked but Liberata did not follow this up further. Liberata did hold a return to work meeting with Ms Donelien and considered correspondence from her GP.

As a result of being dismissed, Ms Donelien brought a claim to the tribunal for failure to make reasonable adjustments.

Findings

The employment tribunal (ET) found that although Ms Donelien was not disabled in July 2009 when the occupational health report was issued, she was disabled by August 2009. Although Liberata did not have actual knowledge of her disability, the question was whether they ought to have known of her disability.

The tribunal dismissed Ms Donelien’s claim in relation to reasonable adjustments along with her other claims. The tribunal found that it was reasonable of Liberata to rely on the report provided by the occupational health team and they therefore were not ought to have reasonably known of her disability. Liberata had also done all that they could have done to discover any disability.

Ms Donelien appealed to the Employment Appeal Tribunal (EAT) who upheld the tribunal’s decision on the basis that Liberata had done all that they could to discover a disability.

Ms Donelien then appealed to the Court of Appeal. TheCourt of Appeal dismissed the appeal. The test was whether the employer could reasonably be expected to know whether the employee was disabled at the time, and not whether it could have done more.

Ms Donelien was disabled in the final two months of her employment and Liberata stated that they did not know and could not reasonably be expected to have known, this was accepted by the tribunal.

The issue for the tribunal was whether the employer could reasonably have been expected to know of the disability. Liberata had not solely relied on the occupational health reports, they had also conducted return to work meetings and looked at Ms Donelien’s own GP letters.

Employer consideration

This is a welcome judgement for employers as they can rely on occupational health advisers for obtaining clarification on the issue of disability. If however, the report does not address all the issues and concerns raised then the employer should seek further clarification.

In a previous case of Gallop the employer had relied solely on occupational health opinion and it was decided that an employer must come to their own conclusion on whether an employee is disabled. The employer therefore needs to ensure it does follow up any further issues if there are any and obtain a second opinion where necessary.

This decision also shows that an employer need only rely on what they could have reasonably have been expected to know rather than to take every possible step that it can to get confirmation.

 

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