Reasonable efforts enough to escape constructive knowledge of a disability
Solicitor, Veale Wasbrough Vizards
In a recent case, the Employment Appeal Tribunal (EAT) considered whether an employer had constructive knowledge of a disability where the employer took reasonable efforts, but not all possible efforts, to find out if an employee had a disability.
In Donelien v Liberata UK Ltd, Ms Donelien was employed by Liberata as a court officer and was dismissed for persistent short term absences and failing to comply with the absence notification procedure. Ms Donelien gave a number of different reasons for her absences including stress, anxiety and hypertension. Prior to dismissing Ms Donelien, Liberata took the following steps:
- Made an occupational health referral asking a number of questions, including whether Ms Donelien had an underlying condition which could explain her absences. The report stated that Ms Donelien was not disabled but failed to answer Liberata's specific questions. Liberata followed up once but a further more detailed report again failed to sufficiently answer the questions posed.
- Held 'return to work' meetings.
- Engaged in correspondence with Ms Donelien's GP.
Further to her dismissal, Ms Donelien brought various claims against Liberata, including a claim for failure to make reasonable adjustments.
The Employment Tribunal (ET) found that although Ms Donelien was not disabled when the first occupational health referral was made, she was in fact disabled a month later. The duty to make reasonable adjustments only arises where an employer has actual or constructive knowledge of the disability. In this case, the parties agreed that Liberata had no actual knowledge of Ms Donelien's disability but the issue was whether Liberata had constructive knowledge of the disability, ie whether Liberata could reasonably have been expected to know about the disability.
The ET found that Liberata was reasonable in its conclusion that Ms Donelien was not disabled and that they had done all they could reasonably have been expected to do to find out whether she was disabled.
On appeal to the EAT, Ms Donelien argued that Liberata had relied solely on the occupational health report and did not do enough to ascertain whether Ms Donelien had a disability. The EAT dismissed the appeal holding that Liberata did not have constructive knowledge of the disability. Liberata had made its own decision as to whether Ms Donelien was disabled and did not simply defer to the occupational health report. The EAT acknowledged that Liberata could have asked more questions of occupational health, but this was not determinative as Liberata had made other enquiries at return to work meetings and in correspondence with the GP, which was enough to satisfy the EAT. An employer does not have to take every possible step to find out whether an employee is disabled, only reasonable steps.
Although every case on this issue will be decided on its own facts, this case is a reminder to employers that where an employee has short term persistent absences, employers should always bear in mind the possibility of an underlying medical condition causing the absences, which could amount to a disability.
Employers should look to utilise occupational health reports but be aware of the need to critically analyse them when making their own decision as to whether an employee is disabled. Employers should also be on guard to the possibility of an employee moving from not being deemed to have a disability to being disabled during the course of their employment.
We would advise employers to err on the side of caution and to always consider making reasonable adjustments for employees suffering with either long term or persistent short term absences.
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