Employer did not have knowledge of disability despite failure to follow up on occupational health advice.

The Court of Appeal has held that an employer was not fixed with constructive knowledge of an employee's disability despite a failure to follow up on a weak occupational health report. Overall, the employer had taken reasonable steps to reach its own decision on the employee's disability status. In addition, the fact that the employer had made adjustments to the employee's working hours did not necessarily imply knowledge of a disability (Donelien v Liberata UK Ltd).

Background

The Equality Act 2010 obliges employers to make reasonable adjustments for disabled employees where a provision, criterion or practice applied by the employer puts the disabled person at a substantial disadvantage compared to non-disabled persons. This duty is only triggered when employer has actual or constructive knowledge of the disability.

Constructive knowledge captures those things that an employer can be fixed as knowing about had they been reasonably diligent. In other words, if it was reasonable for the employer to have made efforts to have known about it, then they will be deemed to have knowledge of that fact.

In the case of Gallop v Newport City Council the Court of Appeal confirmed that employers are not entitled to unquestioningly rely on occupational health advice when determining whether or not an employee is disabled. Instead, a reasonable employer must make its own judgement on whether an employee is disabled, with the assistance of occupational health or medical advice. Where the advice is that the employee is disabled, this will usually be respected. However, where the advice is that the employee is not disabled the employer has responsibility for making the final factual judgment and cannot simply "rubber stamp" the external advice.

This case concerned whether an employer could be said to have constructive knowledge of an employee's disability where it relied, in part, on weak occupational health advice which had suggested the employee was not disabled.

Facts

The Claimant was employed by Liberata UK Ltd (Liberata) as a court officer for nearly 11 years. She had a poor absence record. In the last year of her employment she was absent on approximately 20 occasions for a total of 128 days. The Claimant reported that she suffered from ongoing conditions including hypertension and work-related stress. She also offered a variety of other reasons for her absences including: viral infections, dizziness, breathing difficulties, adverse reactions to medication, colds, wrist pain and stomach upsets.

The Claimant initially refused to be seen by the employer's occupational health advisor, but eventually agreed to an assessment in June 2009. In the instruction letter, the employer asked the occupational health advisor (Dr Bellamy) to offer a view on whether the Claimant was disabled for the purposes of the Disability Discrimination Act 1995 (the applicable legislation at the time). Dr Bellamy's report highlighted that the Claimant's conditions appeared to be triggered by underlying problems at work, but did not offer a view on whether she was disabled.

Accordingly, the employer followed up with the occupational health provider to seek an answer to that question. In July 2009, a further report was provided by a different occupational health advisor (Dr Brennan), who had not met with, or spoken to, the Claimant. Dr Brennan advised that the Claimant was not disabled, however, it failed to answer the specific questions the employer had raised (for example, whether there was any medical condition which would explain the Claimant's absences).

The employer failed to probe the second occupational health report by seeking responses to the specific questions it had raised. However, they had taken other steps relevant to the assessment of the Claimant's disability status. In particular, they had held regular return to work meetings with her after her spells of absence, had ongoing discussions with her, and had corresponded with her GP (although the Claimant had refused consent for the occupational health advisors to also liaise with her GP).

The Claimant was ultimately dismissed in October 2009 for persistent short term absence and failure to comply with the employer's absence notification process. The Claimant brought various Employment Tribunal claims including that there had been a failure to make reasonable adjustments for her.

Employment Tribunal decision

It was decided that the Claimant was not disabled at the time the second occupational health report was issued (July 2009), but that she had become disabled shortly thereafter and before her dismissal. It was accepted that the employer did not have actual knowledge of the Claimant's disability and so the question was whether they had constructive knowledge.

The Tribunal held that they did not: it was reasonable for the employer to conclude that the Claimant was not disabled on the basis of the facts before it at the time. In particular, it was unlikely that any of the Claimant's medical problems were, or would have been, sufficiently "long-term" to qualify as a disability. Further, many of the absences were not attributable to physical or mental impairments but temporary illnesses such as colds. These types of illnesses would not normally set alarm bells ringing as to the possibility of a disability.

Although the Tribunal was critical of the overall quality of the occupational health report, it was satisfied that the employer had done all it reasonably could to discover whether the Claimant had a disability. In other words, they had not unquestioningly relied on the advice contained in the report, but had taken further steps.

The Claimant appealed to the EAT, arguing that the employer had unreasonably relied on the occupational health report and that it should have done more to investigate her health. The EAT dismissed the appeal. They concluded that whilst a different employer may have chosen to revisit the questions posed to the occupational health advisor, the failure to do so was not fatal. The test was one of reasonableness, not perfection. The Claimant appealed again to the Court of Appeal.

Court of Appeal decision

The Claimant had four key grounds of appeal, each of which were dismissed by the Court of Appeal:

(i) A reasonable reading of the GP's letters should have led to the conclusion that she was disabled:

The Court rejected this on the basis that:

• the GP's letters referred to a wide range of symptoms and conditions and did not provide a clear or consistent picture of the Claimant's state of health. The Court acknowledged that it would have been "hard for a layman to know what to make of all that"; and
• the employer was not dependent on the GP's letters, having sought advice from external occupational health advisors. The advice the employer received from these advisors was "highly relevant to the question of what it could reasonably have been expected to conclude from the GP letters".

(ii) The employer did not take up the Claimant's invitation to approach her GP if they required more information about her health:

The Court said this point was only relevant from the point at which she was found to be disabled (August 2009). By that time, the employer had reasonably declined the Claimant's invitation on the grounds that the matter was in the hands of their occupational health advisors. The Claimant had refused to allow the occupational health advisors to communicate with her GP.

(iii) The employer had unquestioningly relied upon the occupational health advice:

The Court said the Employment Tribunal had correctly identified that the employer had not simply rubber stamped the occupational health advice it had received. It had gone further than this by corresponding with her GP and holding regular meetings with the Claimant. The advice they had received from occupational health cohered with their own experience and the GP advice they had received. Importantly, the HR Manager's letters of instruction to occupational health were accurate and the employer had sought clarification after Dr Bellamy's report had been found wanting.

(iv) The employer had made adjustments for her which should have led them to conclude that she was disabled

The Claimant argued that the fact that her manager had adjusted her hours of work should have led the employer to the conclusion that she was disabled. The Court rejected this: an agreement to adjust working hours did not necessarily imply knowledge of an impairment sufficient to amount to a disability.

Comment

This decision helpfully reminds us that constructive knowledge will only be fixed on the employer where it has failed to take reasonable steps to discover an employee's disability status. The requirement is not to act perfectly. What should do in practice to ensure you have taken such reasonable steps?

• Gather as much information as you can to help you understand the employee's condition. This will include GP certificates and correspondence and notes of your own interactions and discussions with the employee. Regular return to work meetings should be arranged after periods of absence.
• When instructing occupational health advisors, ensure care is taken to accurately summarise your knowledge of the employee's health and ask the advisor to provide a view on whether the employee is disabled by reference to the different elements of the disability test (i.e. Do they have a physical or mental impairment? Does that impairment have a substantial effect on their day to day activities? Is that effect also long-term (or is it likely to be))?
• Do not accept occupational health reports at face value. Critique them against your own knowledge of the employee and their circumstances.
• Reports should be followed up where necessary to avoid an inference that they have been unquestioningly relied upon. This will be the case where the advice is imprecise or incomplete or otherwise contradicts the other evidence that you have about the employee's state of health.

The decision is also helpful for employers dealing with employees who have extensive sickness absence rooted in many different causes. It acknowledges that the assessment of disability status is much more difficult for employers where the absences are short-term, persistent and for a variety of different reasons. Had the absence been in longer blocks and/or for a single reason, this would normally set "alarm bells" ringing as to the likelihood of a disability and may mean that an employer needs to do more to satisfy the test of taking all reasonable steps. Helpfully, the case also indicates that making adjustments for such employees will not necessarily be viewed as a concession that the employee is disabled.

Donelien v Liberata UK Ltd