In the case of Donelien v Liberata UK Ltd UKEAT/0297/14, the Employment Appeal Tribunal (EAT) considered whether an employer had made sufficient enquiry for it to satisfy the employment tribunal that it had no knowledge (actual or constructive) of the claimant's disability. 

The facts 

Ms Donelien was employed as a court officer for almost 11 years by Liberata UK Ltd (the Company). She was frequently absent from work due to sickness and failed to follow the Company's absence notification procedures on every occasion on which she was away from work. In her last year of employment, she was absent on 20 separate occasions amounting to 128 days of absence. Her sickness record was therefore very poor and she was rarely at work. In the Company's view, she chose to attend work when she thought it was appropriate and not when she was required to do so. Ms Donelien was dismissed without notice as a result of her sickness record, her failure to follow the Company's notification processes and her failure to fulfil her contractual hours. 

Ms Donelien brought a claim in the employment tribunal for disability discrimination and failure to make reasonable adjustments. She alleged that she was disabled by reason of seven medical conditions: work-related stress, depression, anxiety, hypertension, asthma/respiratory problems, dyspepsia and migraines. 

Employment tribunal decision 

A finding was made during a preliminary hearing that Ms Donelien was disabled by virtue of three, possibly four, of her medical conditions and this decision was not appealed by either party.  At the full hearing, Ms Donelien's allegations of discrimination and failure to make reasonable adjustments were dismissed. The tribunal considered that there was no duty on the Company to make reasonable adjustments because it concluded, as a matter of fact, that the employer had not known of Ms Donelien's disability. The tribunal was also satisfied that the Company could not reasonably be expected to have known of her disability and she appealed this point to the EAT. The EAT was specifically asked to consider the issue of whether the Company had constructive knowledge of the employee's disability. 

EAT hearing 

Ms Donelien's position was that she had provided the Company with letters from her GP that confirmed she had the medical conditions that she relied on as a disability and the Company's subsequent investigations into her medical conditions were insufficient and below the standard that could be expected of a reasonable employer in the circumstances. In essence, she alleged that the Company could have done more to investigate her health and therefore the Company ought reasonably to have known of her disability. 

The EAT reviewed the factual background to the claim and closely considered the information available to the Company at the time Ms Donelien was dismissed in October 2009. The EAT looked at her sickness record and noted that the reasons given for her absences varied from flu and wrist pain to dizziness. There was therefore no obvious pattern or underlying cause to her absences. After further absences in February, March and April 2009, the Company referred the employee to occupational health. 

The EAT also considered the medical advice available to the Company.  In the occupational health referral the Company asked a number of specific questions. However, the report provided to the Company did not specifically answer those questions. This had prompted the Company to contact the occupational health practitioner by telephone and in response it received a more detailed report. In the second report the occupational health practitioner confirmed that in his view Ms Donelien was not a disabled person "on the evidence [we] have".  The Company did not follow up again on the second report nor did it pursue specific answers to the questions it had raised. 

The EAT criticised certain aspects of the occupational health reports received by the Company. The EAT was concerned that occupational health had failed to provide sufficient explanation of its reasoning for the view that the employee was not a disabled person. The Company was therefore not able to make its own decision as to disability because it had no idea whether occupational health considered that there was a medical impairment, whether that impairment had an adverse effect on the employee's normal day to day activities or whether that effect was substantial or likely to be long term. 

EAT decision 

The EAT recognised that the Company had faced difficult questions, in particular the fact that there was not one single health condition to consider.  Ms Donelien gave various reasons for her sickness absence and they were not obviously related.  The EAT also acknowledged that in this case it was difficult for the employer to untangle the work that the employee could not do due to her medical conditions and the work that she would not do. 

However the EAT decided that the tribunal and the Company had considered the matter of the employee's health carefully. The view of occupational health was plainly part of the decision but other information had also been taken into account, including information provided at return to work meetings, discussions with the employee and letters from her GP. 

In conclusion, the EAT was satisfied that the tribunal did not take an erroneous approach. The EAT accepted that another employer might have followed up on the specific questions asked of occupational health more strenuously but in this case, focusing on that point in isolation would be to single out a small matter when viewed against the circumstances and the whole range of information before the Company. The EAT therefore upheld the decision of the tribunal that the employer could not be said to have constructive knowledge of Ms Donelien's disability at the relevant time and it could not reasonably be expected to have done more to find out about her health. 

Comment 

This case is helpful for employers, as it acknowledges the difficulties that can occur when managing frequent short term sickness absence.  The case confirmed that, whilst employers must make reasonable enquiries to establish whether an employee is disabled, they do not need to take every step possible in order to avoid having constructive knowledge of the disability. This case is also a useful reminder that it is important for employers not to accept occupational health advice uncritically; they must also give thought to the issue of disability.