Is it reasonable to consider that an employer had knowledge of an employee’s disability if the medical evidence obtained states that an employee is not disabled?
This was a question recently reviewed in the Court of Appeal where an employee was found to be disabled under the old Disability Discrimination Act 1995 but only in the last 2 months of their employment, where previously occupational health specialists and GPs had advised that the employee did not have a disability.
Donelien v Liberata UK Ltd
Ms Donelien was employment by Liberata from 1999, latterly as a Court Officer from 2004. From 2008 onwards, Ms Donelien began arriving late for work, leaving early or having whole days off work with little or no prior notice. She told her line manager that she was suffering from low energy levels, tiredness in the morning and that she had high blood pressure. After a period of sickness absence, she told her line manager at her return to work interview that her illness was work related. Ms Donelien’s GP recommended a phased return to work of 3 days a week. Liberata agreed.
Ms Donelien’s health conditions continued and Liberata suggested referral to Occupational Health but Ms Donelien refused. She also refused to attend an absence interview as she was unwell. When the meeting was finally held Ms Donelien was confrontational and uncooperative, repeatedly threatening that she had a desire to speak to the CEO. There were also discussions that Ms Donelien needed to give appropriate notice of absence and should call in before 10am on each day off. Ms Donelien explained that she could not do this as she was not prepared to put herself under that pressure.
A consultation was arranged with occupational health specialists who determined that underlying employment issues were clearly of great concern to Ms Donelien and that the essential problem for her absence was “managerial not medical”. The specialist believed that Ms Donelien’s issues were “linked to some dispute with the company rather than any underlying psychiatric condition” and that there would be an “extremely unlikely cause of long term certification” i.e. she would not have these illnesses for longer than 12 months.
After receiving the advice from occupational health and Ms Donelien’s GP, Liberata held a postponed disciplinary hearing with Ms Donelien. It was decided that she would be dismissed for failure to work her contracted hours and failure to comply with the notification procedures for sickness absence.
Ms Donelien brought claims for unfair dismissal, disability discrimination including a failure to make reasonable adjustments, whistle-blower detriment and unlawful deduction of wages. The Employment Tribunal determined that in the last 2 months of Ms Donelien’s employment she was suffering from a disability; however, it dismissed all claims setting out that it was not reasonable to consider that her employer should have had knowledge of this. A subsequent appeal to the Employment Appeal Tribunal was also dismissed.
Court of Appeal
The Court of Appeal upheld the dismissal of all other claims and only concerned itself with the failure to make reasonable adjustments. The Court set out that an employer must have actual or constructive knowledge that an employee is disabled for it to be considered that they failed to make reasonable adjustments. The Court held that Liberata could not be treated as knowing that Ms Donelien had a disability due to the medical evidence that it had received. It set out that the advice Liberata had received from occupational health, along with their own experience and GP’s letters were all consistent in saying that although Ms Donelien had a number of health issues, these fell short of coming under any disability definition. The Court considered that Liberata had done all they could reasonably be expected to have done to find out about the true nature of Ms Donelien’s health problems and that, on the facts, it appeared to them that Ms Donelien’s problems were “managerial not medical” and would not last longer than 12 months.
In certain circumstances an employer will not be liable for disability discrimination where they did not know, or could not reasonably be expected to know, about an employee’s disability. However, whenever there is a suspicion that an employee has a medical condition that could amount to a disability, employers should take all necessary steps to ascertain the medical position before dismissing the employee or discounting their obligations to consider reasonable adjustments.
Employers have far greater scope to ask questions about any potential disability during employment. If employees commence internal procedures for e.g. poor performance, lateness or absence, employers can discuss any health issues with the employee and, as part of any investigation, ask questions to determine if there is any possibility of underlying disability.
It is important for employers to obtain up to date medical advice, which is usually best obtained from an occupational health practitioner. The employer has to decide whether the employee has a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out day to day activities. Long-term means the condition has lasted 12 months or is likely to last 12 months. If this is not clear, the onus is on the employer to take reasonable steps to try and ascertain if the individual has a disability.
Ultimately, only an employment tribunal can determine whether an employee is disabled within the meaning of the Equality Act 2010.
If you have an queries relating to discrimination or any other HR queries then please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.