Why care?

An employee is disabled under s6(1) of the Equality Act 2010 if they have a physical or mental impairment which has an adverse, substantial and long-term effect on their ability to carry out normal day-to-day activities.

An employer is under a duty to make reasonable adjustments for disabled employees. This duty also arises where an employer operates a provision, criterion or practice which puts a disabled person at a substantial disadvantage in comparison to those who are not disabled, provided that the employer knows of the employee's disability. An employer can be deemed to have constructive knowledge of a disability if it could be reasonably expected to know of the disability. 

In order to understand the employee's medical condition and its effect on his or her ability to work, employers may refer an employee to an occupational health specialist (indeed, the new Government Fit For Work Service, a nationwide occupational health advisory service, is being rolled out across the UK this year.) In Gallop v Newport City Council [2013] EWCA Civ 1583, the Court of Appeal held that employers need to come to their own decision as to whether an employee is disabled, and should not rely solely on the view of occupational health.

(The Equality Act 2010 came into force in October 2010. Before then, similar provisions were contained in the Disability Discrimination Act 1995. This case was decided under the DDA.)

The case

The Claimant was employed for nearly 11 years as a court officer. In the last few years of her employment she was frequently absent, and in her last year was absent on 20 occasions for a total of 128 days. She chose to attend work as and when she thought appropriate because she considered she should have autonomy to manage her own stress – without always telling her employer that she would be absent. 

In May 2009, the Respondent referred the Claimant to its occupational health service, asking a number of questions of them including whether the Claimant had a medical condition which explained the pattern of her absences. The resulting report, in July 2009, stated that the Claimant was not disabled but did not answer the questions the Respondent had asked. The Respondent asked for more information and the occupation health service then provided a more detailed report; however, this second report still did not answer the Respondent's original questions properly. The Respondent did not ask the occupational health service for more information, but did hold meetings with the Claimant to discuss her return to work and corresponded with her GP.    The Claimant was dismissed in October 2009 for unsatisfactory attendance, failure to comply with absence notification procedures, and a failure to work her contractual hours.  

She brought claims against the Respondent for her dismissal, including a failure to make reasonable adjustments and that therefore it had discriminated against her because of her disability. At a preliminary hearing, an Employment Judge heard from the Claimant that she suffered from work-related stress, depression, anxiety, hypertension, asthma/respiratory problems, dyspepsia and migraine and found that by the end of August 2009 at the latest, the substantial effects of the impairments from which the Claimant suffered in performing normal day-to-day activities would have lasted for 12 months.

Both parties at the tribunal agreed that the Respondent did not have actual knowledge of the Claimant's disability, but the Claimant argued that it had constructive knowledge of her disability. 

The Tribunal dismissed all her claims. In relation to her reasonable adjustments claim, the Tribunal held that the Respondent did not have constructive knowledge of the Claimant's disability since it was reasonable to conclude that she was not disabled. The occupational health report in July 2009 was consistent with the Respondent's own knowledge then and on those facts, it was unlikely that the Claimant's medical problems were expected to last for more than 12 months and therefore fall within the definition of disability. In any case, many of the Claimant's absences were for colds, flu and general "stress and anxiety" which would not ordinarily lead an employer to think that the employee was disabled.  Finally, the Respondent had done all it reasonably could be expected to do to discover if the Claimant was disabled, including sending her to an occupational health advisor, holding return to work meetings with her, discussions with her, and reviewing correspondence with her GP, although these efforts were hampered by the Claimant's "attitude of confrontation and lack of co-operation", which had included not giving permission for the occupational health advisor to contact her GP.

However, the Tribunal also noted some problems with the occupational health report, including that the report was written without meeting the Claimant, and was based only on documents, and that the report focussed on the cause rather than the effect of her condition. The report said "there is no medical solution that I can offer you that would provide a favourable outcome" and that "It is unlikely that full resolution can be achieved without addressing the underlying employment issues".

The Claimant appealed to the EAT, arguing that the Respondent had relied without question on the occupational health report, contrary to Gallop; and that it was not correct for the Tribunal to find that the Respondent had done all it reasonably could to investigate her disability, and therefore it should be held to have constructive knowledge of it.

The EAT (Langstaff P) dismissed the appeal. A Tribunal is required to determine a case based on its own facts.  In this case, the Respondent had made up its own mind in accordance with Gallop, and had not simply deferred the decision to occupational health. Whilst another employer might have asked follow up questions once they had received the occupational health report, the Respondent's failure to do so was not the end of the story as it had made other efforts including at least nine meetings following her return to work, and this was sufficient to persuade the EAT it should not be deemed to have constructive knowledge of the Claimant's disability.

The EAT said that the test is not "counsel of perfection", but reasonableness. 

What to take away?

The actions of the employer must be viewed as a whole as to reasonableness, and each case will be considered on its facts. An employer does not need to have taken every step possible to discover an employee's disability in order to avoid being deemed to have constructive knowledge of it. 

This case is good news for employers who have to deal with difficult short-term absence problems as employers only have to be good enough, not perfect, in their enquiries. Employers must try to work out which absences may relate to a condition, and which are separate, which requires careful recordkeeping and absence management procedures, whilst being alert to the possibility that an underlying problem can have many different symptoms so that apparently unconnected absences can in fact be linked. As in this case, an employee may become disabled very quickly so the medical evidence relied upon should be kept up to date.

The Tribunal was concerned that the occupational health report was written without having first spoken to or met the employee. Whilst employers (and occupational health advisors) may wish to consider this and consider what weight to put on the resulting report, the Government's Fit For Work service (which is being phased in across the country this year) is designed so that occupational health advisors will usually prepare a report without meeting the employee.