The Court of Appeal has considered whether an employer had constructive knowledge of an employee’s disability by the time she was dismissed for poor attendance.
Donelien v Liberata UK Ltd, Court of Appeal
Ms Donelien was dismissed following persistent short-term absences and her failure to comply with her employer’s (Liberata) absence notification procedure. In her last year of employment she was absent for a total of 128 days, for a variety of reasons including hypertension, stress/anxiety, viral infections, dizziness, breathing difficulties, reactions to medication, head colds, wrist pain and stomach upsets.
She was referred to Liberata’s occupational health service, which met with Ms Donelien and issued a report. The report stated that she was not disabled, but it failed to address all the questions posed by the employer. Liberata sought clarification and a more detailed report was subsequently provided by a different doctor. This second report still did not engage sufficiently with all the questions.
Liberata held ‘return to work’ meetings with Ms Donelien and considered correspondence from her GP before reaching the decision to terminate her employment.
Ms Donelien brought a number of claims against Liberata, including their failure to make reasonable adjustments (under the Disability Discrimination Act 1995). An employment tribunal held that Ms Donelien was not disabled at the time the occupational health report was issued, but she was disabled by the following month and prior to her dismissal. It was agreed that Liberata did not have actual knowledge of the disability, so the issue for the tribunal to determine was whether the employer had constructive knowledge of it.
The tribunal dismissed all of Ms Donelien’s claims and held that Liberata had no constructive knowledge of her disability during her employment. It had done all it could reasonably be expected to do to discover any disability. The tribunal’s decision was upheld by the EAT, which agreed that Liberata had not relied unquestioningly on the occupational health report, and had no constructive knowledge of the disability.
Court of Appeal decision
The Court of Appeal also dismissed Ms Donelien’s appeal.
The applicable test was whether the employer could reasonably be expected to know that the employee was disabled at the relevant time, not whether it could have done more. Liberata had taken into account its own impressions and experience from its own meetings with Ms Donelien and the correspondence it had received from her GP. It had also, crucially, gone back for further clarification of the occupational health report. It was, therefore, reasonable for the tribunal to conclude that Liberata did not have constructive knowledge of Ms Donelien’s disability.
This is a very helpful decision for employers who seek advice from occupational health professionals on the question of whether an employee has a disability.
The Court of Appeal had previously established (Gallop v Newport City Council ) that employers must come to their own conclusion on whether an employee is disabled or not, and should not rely solely on the advice of occupational health practitioners. The employer in this case had not accepted the occupational health report at face value and had sought further clarification. It is always advisable for employers to take a critical approach to occupational health reports, and ensure that the report addresses all the points they were expecting it to deal with.