... 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.
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.
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.