When dealing with a person who has been off work for a prolonged period due to ill health, it is always a good idea to obtain a medical expert’s opinion on the employee’s condition. However, is an employer simply able to rely on the expert’s views when deciding how to manage the employee or does it have to apply its own mind to the situation? The common sense answer would be that an employer should be free to rely on an expert’s assessment, given that they have been asked to help due to the simple fact that they are an expert! However, employment law tends not to be what you’d expect and a recent Court of Appeal decision dealing with this question proves this point.
Medical opinions are usually sought when there is a risk of an employee being disabled for the purposes of discrimination legislation. For this reason, as part of the assessment process, experts are normally asked for their views on whether an employee is disabled. If an expert comes back with an opinion that the employee is disabled, then at least the employer knows that they have to tread carefully when dealing with them. This is particularly because a duty to make "reasonable adjustments" to working practices and protection against discrimination arising from a disability are triggered when an employer knows or is reasonably expected to know, that an employee is suffering from a disability.
In the Court of Appeal case, an employer was told by Occupational Health specialists that a particular employee (who was suffering from depression) did not have a disability. This advice then informed how the employer treated the employee, which ultimately involved his dismissal. When the employer later had to defend a discrimination claim, it argued that it could not have discriminated against the employee because it did not know he was disabled and relied upon the medical reports obtained in support. Initially, the employer succeeded with this approach, but when the Court of Appeal became involved the Occupational Health reports came under fire. The Court felt that they lacked a reasoned approach and, more importantly, did not base their conclusions on the statutory definition of a "disability". This led to a finding that whilst the employer had acted reasonably by seeking Occupational Health input, it was ultimately for them to make a factual judgment as to whether the person was disabled and not simply "rubber stamp" a medical report. This meant that the employer should have considered Occupational Health’s opinion in light of what it had observed first hand of the employee.
So what should employers take from this decision? Thankfully, we don’t see it as a case of "damned if you do and damned if you don’t". Going forward, employers should still obtain an expert’s opinion where appropriate. However, the key is to make sure that the right questions are asked of the expert (not just simply "is X disabled") and the reports they produce are challenged when all of the relevant points are not addressed, or it seems that they have reached an unsupported conclusion (here, the expert should be asked to revisit their findings and circulate an updated report if necessary).
Unfortunately, notwithstanding the above, where an expert’s report suggests that an employee is disabled, an employer cannot simply ignore this if they have a different view. Employers will still have to have a really good reason for ignoring or challenging an expert’s assessment!
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.