Can Employers Rely on Occupational Health Reports to Determine an Employee's Disability?

Kelly v Royal Mail Group Ltd

Mr Kelly worked as a Postman for Royal Mail. He had a poor attendance record and had triggered Royal Mail's Attendance Policy on several occasions.

In 2017, he had two further periods of absences to undergo carpal tunnel syndrome (CTS) surgeries, which triggered the final stage of the Attendance Policy. Mr Kelly was consequently dismissed and brought claims of unfair dismissal and discrimination arising from disability.

The Employment Tribunal (ET) dismissed both claims finding that:

• Royal Mail's decision to dismiss was fair as it fell within the band of reasonable responses
  
  
• although Royal Mail did not have actual knowledge of Mr Kelly's disability, they had considered whether Mr Kelly was disabled by referring him to four different OH advisers, who all ruled out a disability
  
  
• neither Mr Kelly nor his representative asserted that there was a disability and there was no evidence to suggest to Mr Kelly's Manager that there was any adverse effect on his ability to do his daily duties
  
  
• the fact that Mr Kelly had been given rehabilitation duties and that adjustments had been made to accommodate him did not mean that Royal Mail had knowledge of his disability. The ET said adjustments can be made by any employer who is aware of their employee's temporary health related difficulty.

Therefore, Royal Mail did all that it could reasonably be expected to find out whether Mr Kelly had a disability and its decision to attach weight to the OH reports was reasonable.

Mr Kelly appealed, arguing that Royal Mail had not properly considered the question of disability and had simply rubber-stamped the conclusions of the OH reports.

The Employment Appeal Tribunal dismissed the appeal. It held that when the occupational health reports consider the question of disability in detail, and in the absence of any other evidence, reliance on them will not be considered a rubber-stamping exercise.

Best Practice for Employers

This case is useful guidance to employers dealing with issues of absenteeism where advice from OH is requested.

The tribunal's decision confirms that although you should make an independent judgement as to whether an employee is disabled, in the absence of other evidence, you are entitled to rely on Occupational Health reports.

To discuss how you can handle issues of absenteeism, please contact Katie Hurst in our Employment Law team on 0121 227 3751 or complete the below form.