In Donelien v Liberata, the Employment Appeal Tribunal (“EAT”) has held that an employer did not have constructive knowledge of an employee’s disability, even though further steps could have been taken to investigate her condition.
Under the Equality Act 2010, employers are obliged to make reasonable adjustments to help disabled employees overcome disadvantages arising from working rules and practices, the physical features of the workplace, and the need for auxiliary aids. However, that duty only arises where an employee is disabled within the meaning of the Equality Act 2010 and the employer knows (i.e., has “actual knowledge”) or could reasonably be expected to know (i.e., has “constructive knowledge”) that the employee is disabled. This case was decided under the Disability Discrimination Act 1995, which was replaced by the Equality Act 2010. However, the legal principles are the same.
Whether an employer has constructive knowledge of an employee’s disability will be determined by an Employment Tribunal looking at all of the facts of the case, including the information known to the employer and the efforts made to investigate the employee’s medical condition and its effect on the employee. This will often involve referring employees to Occupational Health or another medical expert so a report can be prepared. However, in Gallop v Newport City Council, the Court of Appeal held that the employer in that case had constructive knowledge of the employee’s disability, even though the Occupational Health report indicated that the employee was not disabled. An employer must therefore form its own view of whether an employee is disabled, and cannot uncritically rely on an Occupational Health report.
Ms Donelien was employed by Liberata as a Court Officer. She was dismissed in October 2009 for unsatisfactory attendance, a failure to comply with sickness notification procedures and a failure to work her contractual hours. This followed Ms Donelien being absent from work for 128 days in the last year of her employment for a variety of different reasons, including stress, colds, stomach upsets, a viral infection and high blood pressure.
Liberata had instructed its Occupational Health provider to prepare a report on Ms Donelien’s condition in May 2009. The enquiries put to the provider included (i) whether Ms Donelien suffered from a medical condition which explained her pattern of absences; (ii) whether any such condition impacted her ability to carry out her role; (iii) how long any such condition would be likely to last; (iv) whether any such condition amounted to a disability; and (v) whether any reasonable adjustments were recommended. The Occupational Health report provided general information but did not fully engage with these enquiries. Accordingly, Liberata followed up by telephone and received a more detailed response. However, although the second response stated that Occupational Health did not believe Ms Donelien to be disabled, it was still lacking in detail, including by not explaining the impact of her medical conditions and their likely duration. However, Liberata did not ask for more information again.
Following her dismissal, Ms Donelien brought Employment Tribunal claims, including for disability discrimination for an alleged failure to make reasonable adjustments.
At a preliminary hearing, the Employment Tribunal determined that Ms Donelien was disabled by August 2009 at the latest. In contesting liability for a failure to make reasonable adjustments, Liberata denied having actual or constructive knowledge that Ms Donelien was disabled. The Employment Tribunal agreed with Liberata.
The decision of the EAT
Ms Donelien appealed to the EAT on two grounds:
- In reaching its decision, the Employment Tribunal had failed to take account of Gallop v Newport City Council when determining whether Liberata had constructive knowledge of Ms Donelien’s disability. Liberata had unreasonably relied on the Occupational Health report and failed to form its own view of whether Ms Donelien was disabled.
- The Employment Tribunal’s decision that Liberata had done what it reasonably could to investigate Ms Donelien’s medical conditions was incorrect, such that Liberata did have constructive knowledge of her disability.
The EAT dismissed both grounds of appeal.
In relation to the first ground of appeal, the EAT, in reviewing the Employment Tribunal’s judgment, decided that the Employment Tribunal had made a determination that Liberata formed its own view that Ms Donelien was not disabled and had not uncritically relied on the Occupational Health report. The EAT noted that Ms Donelien had a variety of apparently unconnected medical complaints, and that it was also difficult for Liberata to draw a distinction between what she could not do and would not do. As such, the Employment Tribunal was entitled to find that Liberata did not have constructive knowledge of Ms Donelien’s disability from the information available to it.
In dismissing the second ground of appeal, the EAT accepted the Employment Tribunal’s finding that Liberata had taken reasonable steps to understand Ms Donelien’s medical position. Clear instructions had been sent to Occupational Health, and Liberata had followed up when the initial response was lacking in detail. Although some employers may have followed up again when the second response still lacked particularity, the test for whether an employer had constructive knowledge is one reasonableness, and Liberata was not required to conduct the perfect investigation.
What does the case mean?
The case is helpful for employers in that it confirms that Employment Tribunals may give them some latitude in determining whether they have constructive knowledge of an employee’s disability. However, care should be taken in seeking to rely on this case as grounds for limiting investigations into an employee’s state of health. The decision of the Employment Tribunal was highly fact-sensitive, and another Employment Tribunal may have taken a different view.
Accordingly, it remains best practice to conduct as thorough an investigation as possible into the medical reasons for employee absence, and to follow up with Occupational Health providers and other medical professionals if their reports are lacking in detail.