The Employment Appeal Tribunal (EAT) decision in Donelien (‘D’) v Liberata UK Ltd demonstrates that employers are not required to take every possible step when investigating whether or not an employee is disabled. It is enough to have acted reasonably.
Although (subject to the facts and circumstances) employers have a duty to make ‘reasonable adjustments’ for disabled employees under the Equality Act 2010, this duty does not arise if the employer does not know, and could not reasonably have expected to know, that the relevant employee had a disability. In more legal terms, the employer must have actual or constructive knowledge of the disability. To be properly regarded as having constructive knowledge, the employer should reasonably be expected to know about the disability.
In this case, D worked as a court officer for 11 years before being dismissed due to both persistent short-term absences (D was absent for a total of 128 days in her final year of employment) and an obstructive attitude to those absences.
D claimed to suffer from a number of medical conditions including hypertension, asthma and stress. Before her dismissal, Liberata referred D to its Occupational Health (OH) service and raised a number of questions in the referral (e.g. whether there was any medical condition which explained these absences and whether D was disabled). An OH report was completed which found that D was not disabled, but the report did not sufficiently engage with the questions asked by Liberata. Liberata followed up on this by telephone and consequently received a more detailed report but, again, this OH report did not engage with the questions asked. Liberata did not follow up with OH any further, but did take other steps, such as considering letters from D’s GP, holding ‘return to work’ meetings and engaging in general discussions with D.
The Tribunal found that D was disabled but dismissed her claims. In relation to D’s reasonable adjustments claim, it was held that Liberata did not have constructive knowledge of her disability, partly because it was reasonable for Liberata to conclude D was not disabled based on the knowledge it actually had, and partly because Liberata had done all it could reasonably be expected to do to discover any disability. The referral to the OH adviser, the return to work meetings and the general discussions were sufficient. What more could Liberata have done?
D appealed to the EAT, arguing that Liberata had constructive knowledge. D relied on the Court of Appeal decision in Gallop v Newport City Council, which highlighted that employers must come to their own conclusions on whether or not an employee is disabled, rather than relying on OH advice without questioning it. However, the EAT dismissed the appeal. It held that Liberata had made up its own mind rather than relying in full on OH advice. In addition, although other employers might have done more to follow up with OH, the other steps Liberata had taken were enough to satisfy the EAT that they could not have been expected to do more, and should not be deemed to have constructive knowledge of D’s disability. The relevant test was one of reasonableness, not perfection, and the duty to make reasonable adjustments did not therefore arise.
This case provides some reassurance to employers regarding steps they should take when dealing with ill health absences and possible disabilities, particularly where OH advice is involved. However, the case also emphasises that employers should take into account OH advice, but not rely on it without question. This is particularly important if – as in this case – the OH adviser has not spoken to or met the employee.