This point was addressed in the recent case of Donelien v Liberata UK Ltd. The employee had a very poor attendance record and cited as reasons for her absence a plethora of different conditions, ranging from viral infections to wrist pain to stress and anxiety. Liberata referred her to its Occupational Health service. Occupational Health, on two occasions, failed to address the specific questions Liberata put to it, and Liberata did not follow up further. However, Liberata did conduct a number of return to work meetings, engaged with the employee regarding the reasons for her absence and reviewed correspondence from the employee’s GP. The employee was dismissed for unsatisfactory attendance. 

The employee brought a claim for failure to make reasonable adjustments. The parties agreed that Liberata did not have actual knowledge of the employee’s disability, but did it have constructive knowledge of it? In other words, should it reasonably be expected to have known of the disability?

The Employment Tribunal and, on appeal, the Employment Appeal Tribunal said no. Liberata had not relied unquestioningly on the Occupational Health report. Liberata, as it was obliged to do, made up its own mind, on the basis of all the evidence available to it. It had in fact gone back and asked questions of Occupational Health after the first report was unsatisfactory. While it did not follow up a further time, it did conduct return to work meetings with the employee, discuss her conditions with her and review correspondence from the employee’s GP. The Employment Appeal Tribunal found that Liberata had done all it reasonably could to investigate the employee’s disability, and for that reason it did escape constructive knowledge of the employee’s disability.