The case: Ms Donelien was dismissed by her employer for unsatisfactory attendance and failure to comply with absence procedures. During the course of her employment, she claimed to suffer from several medical conditions and, in her last year of employ- ment, was absent on 20 separate occasions for varying reasons. Before dismissing Ms Donelien, her employer requested GP letters regarding her absences, held return-to-work meetings to discuss her conditions, and referred her to occupational health. The OH report did not sufficiently answer their questions, and so they made follow-up enquires. These were not addressed sufficiently, but the report concluded that the employee was not disabled. Ms Donelien brought a claim for disability discrimination and failure to make reasonable adjustments, but the Tribunal did not uphold her claim. On appealing to the EAT, it held that her employer did not have constructive knowledge of her disability, i.e. they could not reasonably be expected to know that she was disabled. The discrimi- nation claim, therefore, had to fail. The EAT recognised the difficulties faced by the employer in relation to the employee’s various and often unrelated conditions, and felt that the employer had carried out a reasonable investigation into her health, looking at a number of different sources, rather than relying solely on the OH report.
The impact: This case is a useful one for employers, providing some reassurance on the extent to which an employer is required to make enquiries to satisfy a Tribunal that it has taken all steps reasonable to establish whether an employee is disabled. An employer can take some comfort from this case that a Tribunal will view its consideration of an OH report in the context of the other actions it has taken. Importantly here, the employer had spoken to the employee and her GP, as well as having made follow-up enquiries where there were gaps in the OH report.
Donelien v Liberata UK Ltd UKEAT/0297/14/JOJ