The Court of Appeal has upheld a Tribunal's decision that an employer was not deemed to have knowledge of an employee’s disability where an OH report had wrongly determined that she was not disabled.
In Donelien v Liberata UK Limited, D had been employed by LUK since 1999. From 2008 onwards she was off sick for a number of substantial periods, giving a number of different explanations for her ill health including breathing difficulties, stress, viral infections and high blood pressure. Eventually LUK referred D to occupational health which advised that D was not disabled and that her problems were “managerial not medical”.
Following further substantial absences LUK instigated disciplinary proceedings against D, who was subsequently dismissed for failing to comply with the notification procedure for sickness absence and her inability to work her contractual hours. D brought a claim alleging that she had a disability and that LUK had failed to make reasonable adjustments.
At a pre-hearing an employment judge determined that D was disabled within the meaning of the Equality Act. However, at the full hearing the tribunal held that LUK had not discriminated against D by failing to make reasonable adjustments because at the relevant time LUK did not know, and could not reasonably have been expected to know, that D had a disability. The EAT upheld this position on appeal. D appealed to the Court of Appeal citing an earlier decision in Gallop v Newport City Council, where Lord Justice Rimer held that it is not enough for an employer simply to ‘rubber stamp’ a medical adviser’s opinion that an employee is not disabled – the employer is required to form its own view on the matter.
The Court of Appeal in this case observed that the basis of Gallop was that an employer cannot rely simply on its own unquestioning adoption of OH’s unreasoned opinion, but that is very far from saying that an employer may not attach great weight to the informed and reasoned opinion of an OH consultant.
The Court also noted that LUK had held ‘return to work’ meetings and other discussions, and received letters from D’s GP. The Court also observed that LUK had been presented with a good deal of ‘not very clear’ information, which was further compounded by D’s uncooperative and confrontational stance, and that not all of D’s absences reflected her being truly unable to work. The Court therefore agreed with the EAT that LUK could not reasonably be expected to have known that D satisfied the definition of ‘disability’, and that it could not have been expected to have done more.
Simon deMaid comments:
'This case is helpful in allowing employers to rely on OH reports in determining whether an employee is disabled, but it does not allow employers to blindly follow OH reports without properly reviewing them and forming their own reasoned opinion.'
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