It is the employer’s job to make a factual decision about whether an employee is a disabled person, according to last week’s ruling from the Court of Appeal. That means that while it is normally entitled to rely on medical advice, it cannot simply “rubber stamp” the advisor’s opinion.
The dispute in this case concerned whether the employer knew, or ought to have known, that a worker who had been off sick with stress over an extended period was a disabled person. An employer is not liable for discrimination arising from disability, or failure to make adjustments, if it can show that it did not know, and could not reasonably be expected to know, that the employee was a disabled person at the relevant time.
The mistake the employer made when dealing with the claimant was to rely on two separate comments from an independent occupational service to the effect that the claimant was not a disabled person. Although the opinions were given by doctors, they were not reasoned, and did not address the components of the statutory definition. This requires considering whether the worker has a mental or physical impairment, and whether that impairment has a substantial and long-term effect on his or her ability to carry out normal day-to-day activities.
In this case the employer had plenty of medical evidence, but not of the right quality. When it turned out that the claimant was clearly disabled at the relevant time, the evidence was not robust enough to defend the employer’s position that it could not have known he was a disabled person. The mistake the employer made was not to ask the specific factual questions of the medical advisors, relating to the particular circumstances of the claimant’s employment. Had it done so, it would have been in a much better position to make a defensible judgment as to whether or not he was a disabled person.