It depends.

In Donelien v Liberata UK Ltd the Court of Appeal was asked whether an employer had constructive knowledge of an employee’s disability in the context of a reasonable adjustments claim. Liberata had relied on a report from occupational health which wrongly stated that Ms Donelien was not disabled.

Background

  • The duty to make reasonable adjustments for disabled employees only arises when an employer has actual knowledge of the employee’s disability or could reasonably be expected to know of the disability (constructive knowledge).
  • An employee is disabled if they have (1) a physical or mental impairment; (2) which has a substantial and long-term adverse effect; (3) on their ability to carry out normal day-to-day activities.

The facts

Ms Donelien worked as a court officer for Liberata UK Ltd for around 11 years. In the year before her dismissal, Ms Donelien was absent for a total of 128 days and gave numerous explanations for these absences including hypertension, stress, anxiety, viral infections, dizziness, head colds, wrist pain and stomach upsets. She consulted her own GP but did not allow Liberata’s occupational health (‘OH’) advisers to contact her GP.

Liberata referred Ms Donelien to its OH service in May 2009 and posed a number of questions including whether there was a medical condition explaining her absences. The OH report stated that she was not disabled but did not answer all questions posed by Liberata. Liberata followed up and a second report from a different doctor at OH, who had not met with Ms Donelien, did not respond to all of the questions either. Liberata did not follow up again but did hold return to work meetings with Ms Donelien and considered correspondence from her GP.

Ms Donelien was dismissed for unsatisfactory attendance, failure to work her contractual hours and failure to follow Liberata’s absence notification procedures. She brought claims to the tribunal including failure to make reasonable adjustments.

The decision

An employment tribunal and the Employment Appeal Tribunal both found that Liberata had not unlawfully discriminated against Ms Donelien as it had not known that she was disabled. This was confirmed by the Court of Appeal.

  • It was agreed that Liberata did not have actual knowledge of Ms Donelien’s disability. Liberata was found not to have constructive knowledge of her disability either.
  • As was made clear in an earlier Court of Appeal case, an employer should not simply ‘rubber stamp’ an OH report which states that an employee is not disabled, particularly where no reasons are given. However, Liberata was found to have made its own decision on disability status by considering both the OH report (and asking for clarification on some issues) and correspondence with Ms Donelien’s GP and its own meetings with her. The OH findings were consistent with Liberata’s knowledge at the time.
  • The test is whether an employer could reasonably be expected to know that the employee was disabled at the relevant time and not whether it could have done more to discover this.

In practice

As has always been the case, it is for the employer (and then the courts in the event of a claim) to make a judgment on whether or not an employee is disabled – not the medical adviser. This decision does not change this. Rather it reminds employers to ask medical experts the right questions and to think about whether to rely on an OH report before proceeding, in the context of everything else known about the employee and their condition. This is particularly important if the report states that an employee is not disabled without any supporting evidence.

  • In the vast majority of cases, it will be sensible to obtain an OH report to address both the question of disability and what adjustments it might be reasonable to make.
  • To help make an informed decision, employers should, wherever possible, ask for medical opinions based on specific instructions and practical questions.
  • Rather than simply asking whether the employee is disabled, the expert should be requested to consider the employee’s condition relative to each of the strands of the definition of disability (see ‘Background’).
  • When requesting a medical opinion, best practice is to provide any relevant documentation relating to the employee’s job, such as a job description, together with details of any previous assessments or adjustments made to their duties or working conditions.