In a reassuring decision for employers, Donelien v Liberata UK Limited, the Court of Appeal confirmed that an employer seeking to establish that it could not reasonably have been expected to know an employee was disabled is not required to demonstrate that it took every conceivable step to investigate the question of disability. It also confirmed that, while employers should not unquestioningly rubber stamp unreasoned advice from Occupational Health that an employee is not disabled, they can attach great weight to informed medical advice as long as they assess it critically, raise appropriate questions where necessary, and apply their own mind to the question of disability.
An employer is not required to make reasonable adjustments for a disabled employee unless it knows, or could reasonably be expected to know, that the employee is disabled and the effect of that disability i.e. that he/she is likely to be placed at a substantial disadvantage because of it. Similarly, an employer cannot be liable for discrimination arising from disability unless it knew or ought reasonably to have known about the employee's disability.
In Gallop v Newport City Council, the Court of Appeal held that an employer was not entitled to rely solely on the unreasoned opinion of Occupational Health that an employee was not disabled.
Ms. Donelien was dismissed following very high levels of sporadic short-term absences, attributed to a number of different reasons including hypertension, wrist pain, colds, stomach upsets and stress. During the absence management process she was obstructive and confrontational, refusing to allow Occupational Health to contact her GP, failing to comply with the company's absence management procedure and behaving "threateningly" in meetings with her manager and HR.
The Occupational Health report obtained by Liberata stated that Ms. Donelien was not disabled, and that the problems she was experiencing were largely work-related. Liberata made various further efforts to investigate whether she was disabled, including following up with Occupational Health, which had not answered all of the company's questions, holding return to work meetings with the employee and reviewing correspondence from her GP.
Court of Appeal Decision
The employee brought various claims, including for a failure to make reasonable adjustments. It was agreed that Liberata did not know she was disabled. The question for the Court of Appeal was whether the Tribunal and the EAT had correctly found that Liberata did not have constructive knowledge of her disability.
The Court of Appeal agreed that the test is not "a counsel of perfection" and that in the circumstances Liberata could not reasonably be expected to have done more to assess the issue of disability. It had considered the Occupational Health advice in light of its own experience and impressions of the employee, and undertaken its own investigations. This was sufficient to avoid constructive knowledge of Ms. Donelien's disability, and her appeal was dismissed.
After Gallop, it is reassuring that the Court of Appeal has recognised and confirmed that an employer is entitled to give great respect to an Occupational Health report as long as the advice is properly reasoned. This decision also highlights the importance of following up with a medical advisor if his/ her initial report does not fully respond to the questions posed by the employer.
In this case, the employee's refusal to co-operate with her employer during the absence management process was a relevant factor. If Ms. Donelien had allowed Occupational Health to speak to her GP, and been less obstructive in her dealings with Liberata, the outcome might have been different.
Finally, it is worth noting that this decision is not relevant to indirect disability discrimination claims, where knowledge of disability is not required.