It can often be a difficult judgment for an employer to make about whether an employee is disabled, but it is important to get it right, given the potential risks.

In the case of Donelien v Liberata UK Ltd, the Court of Appeal looked at whether an employer knew, or should have been expected to know, that an employee was disabled.

What happened?

Ms Donelien was employed by Liberata for 11 years, before she was dismissed due to her high absence record, and not following the company’s sickness reporting procedure.

Prior to dismissing her, Liberata sent her to see an Occupational Health (OH) doctor. Liberata had previously sought some information from Ms Donelien’s GP and had held “return to work” meetings with her after each period of absence.

Ms Donelien’s absences had been due to various medical reasons, including stress and hypertension. Liberata asked a number of questions in the OH referral letter, including whether there was any underlying medical condition that might be contributing to her high absences, and whether Ms Donelien might have a disability.

The subsequent OH report stated that Ms Donelien was not disabled, but it did not answer all of the questions Liberata had asked in the referral letter. Therefore, Liberata went back to OH, to follow up on this. A different OH doctor reviewed the report (although he did not examine Ms Donelien). This doctor provided further information, but the updated report still did not fully answer all of the questions.

After taking everything into account, including the information from OH, Liberata dismissed Ms Donelien. She then brought various claims in the Employment Tribunal, including a claim for “failure to make reasonable adjustments”.

Under the Equality Act 2010, the duty on an employer to make reasonable adjustments is triggered only where the employer actually knows, or could reasonably be expected to know, that the employee is disabled, i.e. that it had “constructive knowledge”.

Liberata argued they did not have actual knowledge or constructive knowledge of any disability.

What did the Court decide?

The Employment Tribunal found that Ms Donelien was, in fact, disabled, but it dismissed her claims, finding that Liberata could not have known about the disability. The Employment Appeal Tribunal agreed with this view. Ms Donelien appealed to the Court of Appeal.

The Court confirmed that the relevant “test” when looking at an employer’s knowledge of disability, is whether they could reasonably be expected to have known about a disability at the relevant time, not whether they could have done more to find out. The Court confirmed that an employer has to have actual or constructive knowledge about each of the following elements, which are taken from the legal definition of disability in the Equality Act:

  • the employee has a physical or mental impairment;
  • which has a substantial and adverse effect;
  • on the employee’s ability to carry out normal day to day activities.

The Court decided that the Employment Tribunal had been right to find that Liberata did not have constructive knowledge of disability, because:

  • the information it obtained from Ms Donelien’s GP was inconsistent;
  • OH advised that she was not disabled;
  • Ms Donelien had refused to allow the OH to contact her GP;
  • Liberata did not just “rubber stamp” the OH advice, but made their own enquiries.

What do employers need to know?

This case gives some reassurance to employers about being able to rely on OH reports, provided the employer asks OH appropriate and relevant questions, and the OH advice appears reasoned.

However, it remains the case that an employer cannot just “rubber stamp” an OH report, and must exercise some judgment of its own. In this case, Liberata followed up the OH report when it was not clear, and they had also contacted the employee’s GP and spoken to the employee herself during the course of managing her absences.

An employer may be placing itself at risk if it simply takes OH advice at face value, and does nothing more, especially where the OH report is unclear. Likewise, an employer is not likely to get away with simply “pleading ignorance” if they have not asked the right questions of OH in the first place.

Employers should therefore take care when using “pro forma” OH referral letters, which are not tailored to the employee’s particular case.

It goes without saying that for certain medical conditions, and in certain circumstances, for example where the facts point strongly to the risk of a disability, employers will face a higher hurdle in showing that they could not reasonably be expected to have known about a disability.