An employer was fixed with constructive knowledge of an employee's disability after she had been off sick for four months with reactive depression. The employee's depression had been triggered by events which were the subject of an ongoing grievance investigation. Although the employer could not be criticised for not seeking expert advice when the employee first went off sick, once the grievance process had stalled it should have done so.
Employers are under a duty to make reasonable adjustments for disabled people to allow them to access and progress in employment. Where an employer fails to comply with this duty it will be committing an act of unlawful disability discrimination and be exposed to a claim for uncapped damages.
One situation where the duty applies is where the employer operates a provision, criterion or practice (a PCP) which puts a disabled person at a substantial disadvantage compared to non-disabled persons. PCPs are construed very widely and cover any formal or informal policies, rules or practices, including one-off decisions and even decisions to do something in the future.
However, the duty is only triggered where the employer has either actual or constructive knowledge of the disability. Constructive knowledge captures those things that an employer can be fixed as knowing about had they made appropriate enquiries. There are limits to the exploratory steps an employer is expected to take. The Court of Appeal's decision in Donelien v Liberata UK Ltd reminds us that employers are only required to act reasonably not perfectly.
The employee went off sick in February 2012. Her initial sick notes cited reactive depression and bullying as the reason for absence. No specialist advice on the employee's possible disability status was sought at this point. In March 2012, the employee raised a grievance. The grievance investigation was completed by July 2012 and recommended upholding the grievance. However, the investigation report was set aside on the grounds that it was inadequate.
On 18 July 2012, the employer's Chief Executive met with the employee. The Chief Executive promised to deal with the grievance personally. However, after the meeting, the Chief Executive failed to properly review the original grievance report and later changed her mind about dealing with it herself. At the meeting the employee had disclosed that she suffered from long-standing PTSD. Despite this disclosure, still no specialist advice on disability status was sought.
The grievance complaint was ultimately rejected in January 2013. The employee brought a claim arguing there had been a failure to make reasonable adjustments. She said the decisions not to thoroughly review the original grievance report in July 2012 and to delay the resolution of her complaint caused her substantial disadvantage. The employer denied that it had either actual or constructive knowledge of her disability status at the relevant time. If this was correct, then the claim was bound to fail.
The Employment Tribunal (Tribunal) made findings that the employer had actual knowledge of the PTSD on 18 July 2012 and actual knowledge of the reactive depression on 21 November 2012, following receipt of occupational health advice. They were not prepared to imply constructive knowledge from an earlier date. Curiously, despite the finding on the date of knowledge of the PTSD, the Tribunal decided that the employer did not have knowledge of the employee's disability status until 21 November 2012, meaning that the claim failed.
Unsurprisingly, the employee appealed the decision arguing that the employer had knowledge of her disability status from at least 18 July 2012, if not before on a constructive basis. The Employment Appeal Tribunal (EAT) agreed that the Tribunal had gone wrong and there was actual knowledge from 18 July 2012. They then turned to the question of whether there was constructive knowledge of the reactive depression from an earlier point.
The employee argued that constructive knowledge should be fixed from March 2012 given that her sick notes cited reactive depression. She said it would have been reasonable for the employer to have sought occupational health advice at that point and, had it done so, would have been advised that she was disabled. The EAT disagreed. The sick notes covered only short periods and it was known that the trigger for the absence were the issues under investigation as part of the grievance process. As such, it was reasonable for the employer to expect the employee to recover once the grievance process was completed. Therefore, the employer had not failed to act with reasonable diligence at this point.
However, by early July 2012 things had changed. The employee had been off sick for four months and the grievance process had stalled. A reasonable employer would have sought occupational health advice at this point and would almost certainly have been advised that the employee was disabled. Therefore, the EAT fixed the employer with constructive knowledge of the employee's disability status from "early July 2012".
Having concluded that the duty to make reasonable adjustments was triggered, the EAT had to decide whether the proposed adjustments were, in fact, reasonable. They decided that it would have been reasonable to have thoroughly reviewed the original grievance report and to have progressed and concluded the grievance by the end of July 2012.
The key take away point for employers is that what amounts to reasonable diligence in discovering an employee's disability status will be fact-dependent and can change over time. Here, the employer could not be criticised for failing to immediately seek occupational health advice upon receipt of sick notes citing a mental impairment. However, we should be careful about treating this as a general rule. In this case, the employer's approach was acceptable given the short-term nature of the sick notes and the background grievance issues. Had those factors not been in play, the EAT may have expected more from the employer. Employers should, therefore, reflect on all relevant information to decide whether to obtain expert advice at an early stage.
Where a decision is made not to obtain such advice at an early stage, this should be reviewed at regular intervals. Here, the employer did not obtain occupational health advice until the employee had been off sick for approximately nine months. In the EAT's view, this was too late: a reasonable employer should have sought the advice when the employee had been absent for four months and the grievance process had stalled. Again, we should be careful about drawing a general rule from this decision e.g. that a reasonable employer must always seek occupational health advice after four months' absence. For example, had an imminent resolution of the grievance process been in prospect, the decision not to obtain expert advice may have been appropriate.
All of which leaves us unable to predict which certainty when constructive knowledge of a disability will be fixed on an employer. To err on the side of caution, employers can help themselves by devising a timetable of steps that should typically be taken at certain points, such as obtaining the employee's own view of their disability status, holding discussions with them at regular intervals, obtaining medical records and seeking advice from the employee's GP and occupational health advisors. However, it should be remembered that this timetable may need to be accelerated in some cases.
The other simple take away point from this case is that employers must ensure that grievance complaints are dealt with fairly and promptly. We know that a failure to do so will represent a breach of the Acas Code of Practice, which could result in uplifted compensation. This case also highlights that decision-making in such processes may amount to a PCP for the purposes of a high stakes disability discrimination claim.