The recent Employment Appeal Tribunal (“EAT”) case of Donelien v Liberata UK Ltd confirms that employers must demonstrate they have taken ‘reasonable steps’ to establish whether they consider an employee is disabled.
This means that it is not necessary to explore every conceivable avenue to avoid having constructive knowledge of disability. However, the case emphasises that it will not suffice to simply accept a medical professional’s opinion without more information.
In this case, the Claimant was dismissed after a high number of short term absences and failure to comply with the employer’s sickness absence process. The Claimant had been uncooperative throughout. She argued that that employer had failed to make reasonable adjustments.
The employer relied in part on a flawed occupational health report when concluding that the employee was not disabled. It also held return to work meetings with the Claimant, engaged in discussions with her about her absences and reviewed the correspondence from her GP.
As a consequence, the employer made no adjustments, even though discrepancies in the report warranted further investigation.
The EAT took into account these wider investigations and held that, when viewed as a whole, the employer had taken sufficient steps to avoid having constructive knowledge of the employee’s disability.
Disability and reasonable adjustments
An employee will be disabled if they have a physical or mental impairment which has a substantial adverse effect on their normal day-to-day activities, which lasts (or is likely to last) more than 12 months.
In order to trigger the duty to make reasonable adjustments, the employer must have either actual or constructive knowledge of the disability.
Reasonable adjustments will need to be made if an employer’s provision, criterion or practice puts an employee at a substantial disadvantage in comparison to a non-disabled employee.
Reasonable steps to avoid constructive knowledge
Donelien reconfirms that an employer should do all that is reasonable to find out about the nature of the health problems of an employee, the impact on them and any likely prognosis before deciding if they are likely to be disabled or not.
Employers should therefore take into account information including occupational health and other medical reports and engage with employees about their medical conditions, including holding return to work meetings.
It is important that an employer forms its own judgment on whether or not an employee is disabled. It cannot simply say it accepted the findings of a medical adviser without showing it properly considered and formed its own independent view.
The EAT in Donelien relied on the previous Court of Appeal case of Gallop v Newport City, which held that an employer cannot leave a decision as to whether an employee is disabled purely to the opinion of a medical advisor. In Gallop, the Court held that an Employment Tribunal was incorrect to find that an employer could not reasonably have been expected to know that an employee suffering from stress-related symptoms was disabled, when relying solely on an occupational health report. Consequentially, it was found that the employer had not done enough to avoid having constructive knowledge.
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