Employer’s knowledge of disability
Thursday 8th March 2018
The Court of Appeal has held, in Donelien v Liberata UK Limited, that employers may rely on occupational health reports when evaluating whether an individual is disabled, provided they do not simply “rubber stamp” the report.
Following substantial and numerous periods of sick leave, Ms Donelien was dismissed from her role as a court officer for repeatedly failing to work her contracted hours or to comply with LUK Ltd’s absence notification procedures. Ms Donelien commenced ET proceedings, including a claim of disability discrimination.
The issue before the CA was the ET’s finding that LUK Ltd did not know, and could not reasonably have been expected to know, that Ms Donelien was disabled and consequently were not under any duty to make reasonable adjustments.
Ms Donelien challenged LUK Ltd’s reliance on an OH report which stated she was not disabled, arguing that the CA decision in Gallop v Newport City Council prevented LUK Ltd from relying on the report. Gallop held that an employer is not entitled to deny knowledge of disability by relying on its “unquestioning adoption” of OH’s “unreasoned opinions”.
However, the CA held that LUK Ltd had not simply rubber stamped the OH report, as had happened Gallop. The decision in Gallop does not prevent an employer giving weight to an informed and reasoned opinion of an OH consultant. The CA considered that the ET had critically examined the OH report and had not considered it decisive on the issue of disability. Rather, it was evaluated with all other relevant factors.
The CA noted that there had been multiple unsuccessful attempts at addressing the problems and Ms Donelien was uncooperative and confrontational during meetings. She had provided multiple reports from her GP, but refused to give consent for OH to contact her GP. Additionally, not all her absences were a result of being unable to work; there was also an unwillingness to do so. Further, despite making additional inquiries, the information available did not give a clear or consistent picture. LUK Ltd had to separate what Ms Donelien could not do, from what she would not do. The CA concluded this was not an easy exercise, noting that employers are not doctors or psychologists. Accordingly, the ET’s conclusion on disability was upheld.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.