Employment Law Speed Read – 19/02/18
19th February, 2018
This week we look at a case which involves the length to which employers need to go to investigate whether or not an individual has a disability.
Donelien v Liberata UK Ltd (2018)
In Donelien v Liberata UK Ltd the Court of Appeal upheld the decision that an employer did not have constructive knowledge of an employee’s disability as it had taken reasonable steps to ascertain whether she was disabled.
Ms Donelien (D) was employed by Liberata, as a Court Officer from 1999 until her dismissal in October 2009.
D’s poor attendance at work became a significant issue in 2008, when she took numerous short term absences and persistently failed to comply with Liberata’s absence policy. In the last year before she was dismissed, she had a total of 128 days of absence.
Although D explained that she suffered from hypertension and work related stress, the majority of absences related to colds, flu and other ailments.
In May 2009, Liberata asked Occupational Health (OH) to assess D to understand whether she had a specific underlying health issue, or a disability to establish if any reasonable adjustments would be required.
The OH report said that D did not have a disability. Liberata was not satisfied that the report comprehensively answered all of their questions so asked follow up questions, obtained a further OH report and reviewed correspondence from D’s own GP. D was obstructive throughout the process and refused to let OH contact her GP.
After considering the medical evidence, Liberata started disciplinary proceedings against D and she was dismissed for her absence record and failure to comply with Liberata’s notification policy.
D brought various claims against Liberata to the Employment Tribunal, including the failure to make reasonable adjustments.
It is a potential defence for an employer if it did not know, and could not reasonably be expected to have known, that an employee was disabled.
The Employment Tribunal found that D was disabled from August 2009, which was after the OH report had been issued but before she was dismissed. Consequently there was no issue as to whether Liberata had actual knowledge: the issue was whether Liberata had constructive knowledge of D’s disability and whether Liberata’s duty to make reasonable adjustments had been triggered.
The Employment Tribunal found that Liberata did not have constructive knowledge, and had taken all reasonable actions to determine whether D had a disability. D appealed to the EAT, who again found that Liberata they had no knowledge of D’s disability.
Court of Appeal
D appealed to the Court of Appeal who held that the relevant test was whether the employer could have reasonably expected to know that the employee was disabled at the relevant time, and not whether the employer had taken every step possible to determine whether an employee was disabled.
The Court distinguished the current facts from the earlier case of Gallop v Newport City Council(2003) (where it was held that an employer could not rely solely on an unreasoned OH report and must instead come to their own view) because Liberata had been ‘presented with a great deal of unclear information’ from the Claimant, D had been obstructive in denying OH contact with her GP, and Liberata had taken further steps to clarify OH reports and seek further opinions. This was not a ‘rubber stamp case’.
This case shows the importance of testing Occupational Health reports and taking all facts into account when reaching a decision on an employee’s health. If employers take a comprehensive and critical approach – it may provide them with a defence to a later claim.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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