Case update (3): Disability discrimination – are you in the know?

Summary:  Does an employer have to take every possible step to establish whether an employee is disabled to avoid having constructive knowledge of disability?

No, says the Court of Appeal in Donelien v Liberata UK Ltd available here.

Facts:  The employer, Liberata, employed Ms Donelien for nearly 11 years as a court officer until it dismissed her without notice for three separate, but interrelated, matters to do with her attendance at work. In the last year of her employment she was absent for 128 days for various reasons, ranging from stress to head colds.

Liberata referred Ms Donelien to its occupational health service (Occupational Health). Liberata asked several relevant questions in its referral. Ms Donelien met with Occupational Health and it provided its report to Liberata. Occupational Health decided that Ms Donelien was not disabled, but did not answer all of Liberata’s questions. A second report provided in response to Liberata’s follow-up still did not answer all the questions posed. Liberata made its own further enquiries by holding return to work meetings and considering writing to her GP.

Ms Donelien was dismissed for unsatisfactory attendance, failure to comply with Liberata’s absence notification procedures, and failure to work her contractual hours.

Ms Donelien brought Tribunal claims, including a claim for failure to make reasonable adjustments.  The Tribunal found that although Ms Donelien was not disabled in July 2009 when the Occupational Health report was issued, she was disabled by August 2009 (and thus at the date of dismissal).

However, the Tribunal decided that Liberata did not have knowledge of Ms Donelien’s disability and dismissed her claims. Ms Donelien appealed to the EAT which upheld the Tribunal’s decision.

Ms Donelien appealed to the Court of Appeal.  The Court of Appeal confirmed the test was whether the employer could reasonably be expected to know that the employee was disabled at the relevant time. An employer will have constructive knowledge if it has knowledge of all three elements of disability. i.e.

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

The Court of Appeal found that Liberata did not have knowledge of Ms Donelien’s disability when it dismissed her. It based its decision on the following factors:

• The GP gave inconsistent information about the reasons for her absences.
• Occupational Health formed the view that Ms Donelien did not have a disability.
• Liberata was not required to contact the GP directly. Any contact should be via Occupational Health and Ms Donelien refused to consent to this.

Liberata had not accepted the first Occupational Health report without question, but had conducted its own further enquiries.  Liberata had taken into account its own impressions and experience from its own meetings with Ms Donelien and the correspondence it had received from her GP. It had also gone back to Occupational Health when it had found the information in the initial report to be unsatisfactory. The Court of Appeal said that “this was clearly not a rubber stamp” case.

Implications:  This is helpful to employers in that only reasonable steps need to be taken to discover whether an employee is suffering from a disability, in order to avoid constructive knowledge of the disability.  Some useful tips from this case include that employers should:

• be prepared to go back to Occupational Health advisors if they do not have the information they need to make a judgement on whether an employee is disabled; and
• provide their own reasoned medical evidence/opinion when deciding whether an employee is disabled.