This Court of Appeal decision confirms that an employer does not have to take every possible step to establish whether an employee is disabled to avoid having constructive knowledge of disability. The test is what the employer could reasonably be expected to know.

The facts

The duty to make reasonable adjustments is only triggered if the employer knows about a disability. To "know", the employer must have actual or constructive knowledge of an employee's disability. "Constructive" knowledge arises when the employer could reasonably be expected to know about the disability, and so involves asking whether the employer "ought to have known" something, despite having no actual knowledge of it.

Ms Donelien was employed by Liberata UK Limited (Liberata) as a court officer for nearly 11 years. She claimed to suffer from a variety of medical conditions, including hypertension and "work-related stress". The effect of her absences was exacerbated by her obstructive approach and assumption that she could unilaterally decide to be absent from work without informing Liberata. Ms Donelien consulted her GP regarding her illnesses, but refused to let Liberata's occupational health service contact her GP. In the last year of her employment, 2009, Ms Donelien was absent for a total of 128 days. She gave numerous explanations for her absences, including hypertension and generalised references to stress and anxiety, but also a number of possible viral infections, dizziness, difficulty breathing, reaction to medication, head colds, wrist pain and stomach upsets. On one occasion Ms Donelien gave no reason for her absence. As the tribunal put it, "she was rarely at work".

In May 2009, Liberata had referred Ms Donelien to its occupational health service. Liberata posed a number of questions in the referral, including whether there was any medical condition that explained the pattern of Ms Donelien's absences. The occupational health report, which was issued in July 2009, stated that Ms Donelien was not disabled, but did not engage with the questions which Liberata posed. Liberata followed up, receiving a more detailed report from a different doctor who had not met Ms Donelin, but had discussed the case with the doctor who had met her and issued the first report. The more detailed report also did not engage sufficiently with the questions posed. Liberata did not follow up further with OH. However, Liberata made other efforts to investigate whether Ms Donelien was disabled, including holding at least nine "return to work" meetings, engaging with Ms Donelien and correspondence from her GP.

In October 2009, Ms Donelien was dismissed for unsatisfactory attendance, failure to comply with Liberata's absence notification procedures, and failure to work her contractual hours. 

Ms Donelien brought a number of claims in the tribunal, including a claim for failure to make reasonable adjustments. The parties agreed that Liberata did not have actual knowledge of her disability, but Ms Doneliens' lawyers contended that Liberata had constructive knowledge of it. 

The tribunal dismissed the claims. It found that Liberata had no constructive knowledge of Ms Donelien's disability during her employment for two main reasons. First, it was reasonable of Liberata to conclude that Ms Donelien was not disabled. The advice from the occupational health advisor was consistent with Liberata's own knowledge at the time. On the facts known to Liberata, it was unlikely Ms Donelien's medical problems would extend for a period sufficient to bring her within the definition of disability. Also, many of Ms Donelien's absences were not due to the impairments which gave rise to her disability. They were attributed to colds, flu and generalised references to stress and anxiety, which would not ordinarily lead an employer to think an employee is disabled. Secondly, Liberata had done all it could reasonably be expected to do to discover any disability. The tribunal noted that Ms Donelien's "attitude of confrontation and lack of co-operation with [Liberata] and her refusal to allow the occupational health service to contact her GP" had been a further complicating factor.

Ms Donelien appealed to the EAT, who upheld the tribunal's decision. Ms Donelien appealed to the Court of Appeal, which unanimously dismissed the appeal. 

The Court of Appeal confirmed that the test was what the employer could reasonably have been expected to know, not whether there was more that it could have done. It was reasonable for the tribunal to conclude that Liberata did not have constructive knowledge in this case. In reaching its decision, the Court took account of the following: 

  • Ms Donelien said that Liberata should have concluded, from reading her GP's letters, that she was suffering from an impairment which had a substantial and long-term effect on her ability to carry out day to day activities. The Court of Appeal commented that the letters from her GP did not give a clear or consistent picture. The first letter from her GP appeared to treat her symptoms as principally the result of high blood pressure, though there was also a reference to "stress, low energy levels and tiredness". The second letter was concerned with self-limiting stomach problems and wrist pain. The third reverted to high blood pressure and stress. Additionally, Liberata was not dependent on the GP's letters, but sought OH advice, which was to the effect that she was not disabled, and that her problems were "managerial not medical".

  • The Court considered that it was reasonable of the employer to take the position that any communication with her GP should be via the OH consultants, who could deal with the GP doctor to doctor.

  • Distinguishing this case from another case about constructive knowledge, the Court of Appeal said that the tribunal had not treated the fact that Liberata had received OH advice that Ms Donelien was not disabled as being conclusive (this would not on its own have enabled Liberata to avoid constructive knowledge) but it 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 gone back to OH when it had found the information in the initial report to be unsatisfactory. The Court of Appeal said that "this was clearly not a rubber stamp" case.

  • Although the second OH report was from a doctor who had not met Ms Donelien, the tribunal had been critical of this and shown misgivings in accepting this evidence. This illustrated that the tribunal had taken a healthy, critical approach to the information available to Liberata.

What does this mean for employers?

This case is a reassuring confirmation that employers do not have to do everything within their power to find out whether or not an employee is disabled to avoid having constructive knowledge. It is not enough, however, simply to take OH reports on face value. It's not uncommon for OH reports to leave questions unanswered, or to give unclear advice and recommendations. Employers should be prepared to go back to OH advisors if they do not have the information they need to make a judgement on whether an employee is disabled. They should also take their own experience of the employee and information from the employee's treating doctor into account, and consider if there are other avenues they might reasonably explore.

Donelien v Liberata UK Ltd