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Will an Employer Have Constructive Knowledge of an Employee's Disability Where They Have Relied on Incorrect Medical Evidence?

on Friday, 16 February 2018.

An employer is not under a duty to make reasonable adjustments if it does not know (actual knowledge) and could not reasonably be expected to know (constructive knowledge) that an individual has a disability...

... and is likely to be at a substantial disadvantage compared with others who are not disabled.

In a recent case, the Court of Appeal (CofA) considered whether an employer had constructive knowledge of an employee's disability, where it had relied on incorrect medical evidence.

Donelien v Liberata UK

Ms Donelien was dismissed from her role as a Court Officer after 10 years' service due to absence related issues. During her engagement, her sickness record was poor and during her final year of employment she had been absent 20 times.

Ms Donelien gave various reasons for her absences to her employer, Liberata, including stress, high blood pressure, dizziness, difficulty breathing and wrist pain. She was referred to Occupational Health (OH). However Ms Donelien was uncooperative and refused to allow OH to contact her GP. OH advised Liberata that, in their opinion, Ms Donelien was not disabled.

Following further periods of absence, Liberata commenced disciplinary proceedings and Ms Donelien was dismissed.  She brought a claim in the employment tribunal for disability discrimination alleging that she was disabled, and Liberata had failed to make reasonable adjustments.

The Court of Appeal's Decision

At a pre-hearing review, an ET held that Ms Donelien had hypertension and therefore met the criteria for disability under the then Disability Discrimination Act 1995 (now the Equality Act 2010). However, a full ET subsequently found that Liberata did not know and could not reasonably have been expected to know she was disabled and therefore had not discriminated against her by failing to make reasonable adjustments.

Ms Donelien appealed this decision all the way to the CofA, on grounds that Liberata had simply "rubber stamped" OH's opinion and not formed its own view as to whether she was disabled.

The Court of Appeal found that Liberata had reached its own conclusion about Ms Donelien's health conditions, having regard not only to the OH opinion, but also to return to work meetings and letters that Ms Donelien had asked her GP to write on her behalf. It therefore concluded that Liberata had not had constructive knowledge that Ms Donelien was disabled and so was not under a duty to make reasonable adjustments.

Best Practice

  • When consulting OH, employers should ensure that the questions asked of OH are appropriate and specific, to enable them to provide a reasoned opinion on disability status.

  • The CofA in this case highlighted that employers should not rely exclusively on an unreasoned OH report when determining if they are under a duty to make reasonable adjustments. However it added: "That is very far from saying that an employer may not attach great weight to the informed and reasoned opinion of an occupational health consultant". Employers should therefore not follow any OH report uncritically, but should follow-up if anything is unclear or if the report does not address all of the questions asked.

  • This decision also confirms that an employer does not need to take all steps possible to ascertain whether an employee is disabled or not in order to avoid having constructive knowledge of disability. The test is one of reasonableness.

  • The CofA noted in its decision that a complicating factor in this case was Ms Donelien's uncooperative and confrontational stance, as a result of which, OH were unable to contact her GP. Had the circumstances been different, OH may have reached a different conclusion as to whether she was disabled in their report.

  • Finally the CofA noted in its judgment that an employer does not necessarily imply knowledge of a disability by making a change to a particular employee's working conditions (for example due to complaints of tiredness in the morning), as was alleged in this case. Each case will ultimately turn on its facts.

For more information, please contact Eleanor Boyd in our Employment Law team on 020 7665 0940.

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