Only “reasonable” efforts needed to avoid having constructive knowledge of a disability.

Background

Employers have a duty to make reasonable adjustments for employees who are “disabled” within the meaning of section 6 (1) of the Equality Act 2010. 

An employer’s duty to make reasonable adjustments can arise where a provision, criterion or practice applied by the employer puts a disabled person at a substantial disadvantage compared to those who are not disabled.

However this duty is only triggered when the employer has actual or constructive knowledge of an employee’s disability. Constructive knowledge arises where the employer could reasonably be expected to know of the disability (paragraph 20 of Schedule 8 Equality Act 2010).

The Facts

The Claimant was employed by Liberata UK Ltd (Liberata) for nearly 11 years, latterly as a court officer. She was dismissed without notice in October 2009 for unsatisfactory attendance, failure to comply with Liberata’s absence notification procedures and failure to work her contractual hours. In the last year of her employment she was absent for 128 days for various reasons including stomach upsets and stress / anxiety.

The effect of her absences was exacerbated by her obstructive approach and her assumption that she could decide to be absent from work without informing Liberata. The Claimant consulted her GP regarding her illnesses but refused to let Liberata‘s occupational health service contact her GP.

In May 2009 Liberata referred the Claimant to its occupational health service and asked a number of questions about the Claimant’s condition. The occupational health report stated that the Claimant was not disabled but did not answer all the questions which Liberata had posed. A second report provided in response to Liberata’s follow-up still did not answer all the questions asked. Liberata did not follow this up further but did make their own other efforts to investigate whether the Claimant was disabled including holding “return to work” meetings, engaging with the Claimant and considered correspondence from her GP.

Employment Tribunal

The Claimant lodged an employment tribunal claim alleging (among other things) that she was disabled and that Liberata had failed to make reasonable adjustments to accommodate this.

The tribunal found that although the Claimant was not disabled in July 2009 when the occupational health report was issued, she was disabled by August 2009.

The parties agreed that Liberata did not have actual knowledge of the Claimant’s disability and therefore the issue in dispute was whether Liberata had constructive knowledge of it.  The tribunal found that Liberata did not have constructive knowledge of the Claimant’s disability during her employment because:

1. The advice from occupational health was consistent with Liberata’s own knowledge at the time; and
   
   
2. Liberata had done all it could reasonably be expected to do to discover any disability.

The EAT

The EAT upheld the tribunal’s decision. The EAT agreed that Liberata had not relied unquestioningly on the occupational health report and had no constructive knowledge of the disability.

The Court of Appeal

The Claimant appealed to the Court of Appeal citing the Court of Appeal’s earlier decision in Gallop v Newport City Council where it was 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 concluded that the basis of Gallop was that an employer cannot rely simply on the Occupational Health option. This is very different from saying that an employer may not attach great weight to the informed and reasoned opinion of Occupational Health.

The test was whether the employer could reasonably be expected to know that the employee was disabled at the relevant time and not whether it could have done more.

The Court of Appeal unanimously dismissed the appeal and found that Liberata did not have constructive knowledge of the Claimant’s disability when it dismissed her.   This decision was based on the following factors:

• The GP gave inconsistent information about the reasons for her absences;
  
  
• Occupational Health formed the view that the Claimant did not have a disability;
  
  
• Liberata was not required to contact the GP directly. Contact had to be via Occupational Health and the Claimant refused to consent to this;
  
  
• Liberata had not accepted the first occupational health report without question but had conducted its own further enquiries;
  
  
• The adjustments that Liberata had made to the Claimant’s working conditions did not imply that it had knowledge of a disability.

What does this mean for you or your business?

• As has always been the case, it is for the employer (and in the event of a claim the courts) to decide whether or not an employee is disabled, not the medical adviser. This decision does not change this.
  
  
• You can continue to rely on the advice of occupational health advisers in determining the issue of disability so long as appropriate questions are raised and further clarifications sought where necessary.  This is especially important where a report states that an employee is not disabled without any supporting evidence.
  
  
• You don’t have to take every step possible to establish whether an employee is disabled in order to avoid having constructive knowledge of disability. It is your actions as a whole that matter. The test is what an employer could reasonably be expected to know.

What do you need to be doing now?

• You should always follow up with occupational health advisers if their initial report does not address all of the issues you raise.
  
  
• You should ensure that questions sent to occupational health are appropriately framed to allow a reasoned opinion on disability.  You should request that an employee’s condition is considered relative to each of the strands of the definition of disability.
  
  
• Occupational health advisers should be provided with relevant information relating to the employee’s job, such as job description and any details of previous assessments or adjustments made to their duties or working conditions.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.