When do employers have constructive knowledge of disability?

Edith Donelien v Liberata UK Ltd (Court of Appeal)

The Court of Appeal has confirmed that an employer did not have constructive knowledge of an employee’s disability where it relied on an occupational health report stating that the employee was not disabled and the employer had done all that it could reasonably be expected to have done to find out the nature of her health problems.

A court officer was regularly absent from work, claiming that her absences were due to various health problems such as high blood pressure, breathing problems, or work-related stress. After receiving letters from her GP, her employer agreed to change her working hours, arranged a return-to-work meeting with her, and referred her to its occupational health service. Her employer posed several questions for Occupational Health to answer, and the subsequent assessment advised that the court officer was not disabled, although it did not answer all of the questions as the employee was uncooperative during the medical and refused to allow the occupational health consultant to liaise with her GP. Following further periods of absence, the court officer was dismissed due to her failure to attend work during her contractual hours and to comply with her employer’s absence notification procedure.

She brought various claims including for direct disability discrimination and a failure to make reasonable adjustments. The ET held that the court officer was in fact disabled (as defined by the Equality Act) prior to her dismissal, but her claims were dismissed as her employer did not know and could not reasonably have been expected to know of her disability: it had taken reasonable steps to determine the nature of her health problems. On appeal, the EAT upheld the tribunal’s decision. The court officer appealed to the Court of Appeal.

The Court of Appeal unanimously dismissed the appeal. It held that in the circumstances, it was reasonable for the tribunal to find that the employer did not have constructive knowledge of the court officer’s disability. The employer had taken into account not only the report from its occupational health provider advising that the court officer was not disabled, but also the letters from her GP and the return-to-work meeting with the court officer.

The decision is helpful for diligent employer, in providing guidance on the lengths an employer can be expected to go in order to understand the gravity of an employee's condition and the threshold for acquiring "constructive knowledge". However, it should not be read as meaning that the employers can and should rely solely on occupational health reports, as such reports must not be read uncritically or taken entirely at face value. Employers must consider the context, whether the report raises further questions to be answered, and whether other steps should be taken to establish whether the employee is suffering from a disability.