Did Royal Mail unfairly dismiss or discriminate against Mr Kelly, and more generally: 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 for more than 20 years until his dismissal in 2017.
Royal Mail operated an attendance policy which had been agreed with the union, and provided for three attendance review stages. He had a poor attendance record, with a series of planned and unplanned absences which he had put down to issues ranging from bad luck and family problems to ill health. This meant that he had repeatedly triggered the attendance review procedure, and had taken so much special leave that he had been warned that no further absences could be treated as special leave.
Mr Kelly triggered the final stage of the procedure when he was absent for surgery to treat carpal tunnel syndrome in his wrists. Royal Mail’s policy provided that the final stage could potentially lead to a dismissal, taking a holistic view of the employee’s attendance record. Royal Mail considered the whole of his sickness record and the more recent absences, and concluded that they no longer had confidence in his ability to maintain a satisfactory attendance record in the future. Mr Kelly brought claims for unfair dismissal and discrimination arising from disability. In a claim for the latter, a claimant has to show that the employer knew or reasonably ought to have known that they had a disability within the meaning of the Equality Act 2010.
The employment tribunal dismissed Mr Kelly’s claims on the basis that his employer did not have knowledge of his disability. The occupational health reports, the trade union and Mr Kelly himself all ruled out a disability. They had referred him to occupational health on four occasions. The unanimous advice was a prognosis of a full recovery and no disability. As such the tribunal found that there was nothing to alert Royal Mail of any need to look behind this and they were entitled to rely on the occupational health advice received.
Just because he was given rehabilitation duties and adjustments to accommodate him, this did not mean that they knew of a disability and it was recognised that such adjustments could be made in the event of a short term illness. Therefore Royal Mail did all it could reasonably be expected to do to find out whether Mr Kelly had a disability.
The claim for disability discrimination therefore failed, as did the claim for unfair dismissal on the basis that dismissal was for “some other substantial reason” (i.e. that Royal Mail had lost confidence in Mr Kelly’s ability to provide reliable attendance). It recognised the decision to dismiss as “somewhat harsh” but said it was within the band of reasonable responses available to a reasonable employer. Mr Kelly appealed. Amongst other things, he claimed that Royal Mail merely ‘rubber stamped’ the occupational health report, making no further enquiries as to his ill health.
The Employment Appeal Tribunal dismissed Mr Kelly’s appeal. In particular, it decided that the tribunal was entitled to find that it was not unfair for Royal Mail to take account of the overall absence record, particularly as this was set out in the procedure. It was also entitled to find that Royal Mail could treat the two periods of absence relating to the same condition as two separate periods of absence.
In relation to knowledge of disability, it was acknowledged that it is not sufficient for an employer to merely rubber stamp the medical advisor’s report and that it must make its own factual judgment as to whether the employee is disabled. However an employer may attach considerable weight to the informed and reasoned opinion of an occupational health medical consultant in reaching its own assessment. Royal Mail did consider whether Mr Kelly was disabled. All occupational health reports were clear in that the Mr Kelly’s condition did not amount to a disability, and Mr Kelly himself was saying at the time that he was not disabled. The tribunal was therefore entitled to find as it did: that Royal Mail had no knowledge of Mr Kelly’s disability.
An employer cannot be liable for discrimination arising from disability unless it knew (or should have known) about the employee’s disability. As part of this, an employer must do all it can reasonably be expected to do to find out if the employee is disabled.
Employers should make an independent judgement as to whether an employee may be disabled within the meaning of the Equality Act 2010 after considering all of the circumstances and obtaining vital medical evidence. However, in the absence of any other evidence (such as evidence from the employee about their condition) reliance on an occupational health report will not necessarily be considered a “rubber-stamping” exercise and the employer will be entitled to rely upon it.
If you would like any advice in relation to disability discrimination or have any other employment law or HR queries, please contact our employment team on 01228 552600 or 01524 548494.