Employer did not have constructive knowledge of employee's disability

Donelien v Liberata UK Ltd [2018] EWCA Civ 129

Why care?

In this case, an employer had taken reasonable steps to find out if an employee was disabled, and did not therefore have constructive knowledge of her disability. The test was what was reasonable for the employer to know, not whether there was more that the employer could have done.

An employee is disabled under the Equality Act 2010 if they have a physical or mental impairment which has an adverse, substantial and long-term effect on their ability to carry out normal day-to-day activities. A disabled employee is protected from discrimination, and employers are under a duty to make reasonable adjustments for disabled employees.

An employer can be deemed to have constructive knowledge of a disability if it could be reasonably expected to know of the disability – if, in other words, it knows that the employee has a mental or physical impairment, and knows of the effects of that impairment on their daily activities.

In order to understand the employee's medical condition and its effect on his or her ability to work, employers may refer an employee to an occupational health specialist. Employers should reach their own decision as to whether an employee is disabled, and should not rely solely on the view of occupational health.

The case

The Claimant worked for the Respondent for nearly 11 years before her dismissal in October 2009 for persistent short-term absences, failure to follow the Respondent's absence procedures, and failure to work her contractual hours. She reported medical conditions including hyper- tension and work-related stress, but also viral infections, dizziness, head colds, wrist pain, stomach problems, reactions to medication and difficulty breathing (and on one occasion, gave no reason at all). In her last year of employment, she was absent on 20 occasions for a total of 128 days.

In May 2009, the Respondent had referred the Claimant to its occupational health service, asking a number of questions of them including whether the Claimant had a medical condition which explained the pattern of her absences. The doctor met with the Claimant before writing a report stating the Claimant was not disabled, but not answering all the questions the Respondent had asked. The Respondent requested a second report from another doctor; this doctor did not meet the Claimant, but discussed the case with the doctor who had written the first report and then provided a more detailed second report, which still did not sufficiently answer the Respondent's original questions. The Respondent did not ask the occupational health service for more information, but did hold meetings with the Claimant to discuss her return to work and corresponded with her GP.

She brought claims against the Respondent for her dismissal, including a failure to make reasonable adjustments.

The employment tribunal held that the Claimant was not disabled in July 2009 at the time of the first occupational health report, but that she was by August 2009. The parties agreed that the Respondent did not have actual knowledge of her disability. The tribunal held that it did not have constructive knowledge either. It was reasonable to conclude she was not disabled, because the July 2009 report was consistent with the Respondent's own knowledge. Many of the Claimant's absences were for colds, flu and general "stress and anxiety" which would not ordinarily lead an employer to think that the employee was disabled. Finally, the Respondent had done all it reasonably could be expected to do to discover if the Claimant was disabled, including meeting with her, corresponding with her GP, and sending her to an occupational health adviser. These efforts were hampered by the Claimant's "attitude of confrontation and lack of co- operation", which had included not giving permission for the occupational health advisor to contact her GP.

The Claimant appealed to the Employment Appeals Tribunal, which upheld the tribunal decision. The Respondent had made up its own mind, and had not simply deferred the decision to occupational health. It had also made other efforts to determine the nature of her condition.

The Court of Appeal unanimously dismissed the Claimant's appeal. The test was whether the employer could reasonably be expected to know that the employee was disabled at the relevant time, not whether it could have done more.

An employer will have constructive knowledge of an employee's disability if it has knowledge that the employee has:

• a physical or mental impairment
• which has a substantial and long-term adverse effect
• on the employee's ability to carry out normal day to day activities

It was reasonable for the tribunal to find that the Respondent did not have constructive knowledge of all three elements of disability. The GP's correspondence did not give a consistent picture of her condition and the occupational health consultants' advice was that the Claimant's problems were "managerial, not medical". In their view, the Claimant was not disabled, and that she had no mental or physical impairment at all (or that if she did, it did not substantially affect her ability to carry out day-to-day activities).

The Court of Appeal agreed with the tribunal that it was reasonable for the Respondent to decide that any communications with the Claimant's GP should be via the occupational health consultants, and the Claimant had refused to permit this.

The Respondent had not 'rubber stamped' the advice – it had reached its decision taking into account its own impressions from meetings with the Claimant and the correspondence from her GP, and it had gone back to occupational health for a second report when the first one was unsatisfactory. The second report had been written by a doctor who had not met the Claimant, and the tribunal had expressed its misgivings in accepting this evidence; this demonstrated that the tribunal had taken a critical approach to the evidence.

The Respondent had agreed a change to the Claimant's working hours, but that did not mean that it had knowledge of an impairment substantial enough to be a disability.

What to take away

The case is reassuring for employers dealing with difficult absence problems. The actions of the employer must be viewed as a whole as to reasonableness, and each case will be considered on its facts. An employer does not need to have taken every step possible to discover an employee's disability in order to avoid being deemed to have constructive knowledge of it.

Occupational health reports are a valuable tool and employers may rely on them, so long as the report answers appropriate questions and further clarification is sought if needed. The Respondent in this case acted correctly in picking up the gaps in the report and seeking further information.

Employers must try to work out which absences may relate to a condition, and which are separate, which requires careful recordkeeping and absence management procedures, whilst being alert to the possibility that an underlying problem can have many different symptoms so that apparently unconnected absences can in fact be linked. As in this case, an employee may become disabled very quickly so the medical evidence relied upon should be kept up to date.

The Tribunal was concerned that the second occupational health report was written without having first spoken to or met the employee. Although this was not in the event fatal to the Respondent's defence, employers (and occupational health advisors) may take the view that a face to face meeting should usually take place, and to consider how to obtain additional evidence if circumstances make it impossible. Here, the Claimant damaged her own case by refusing to allow the occupational health advisers to contact her GP.

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