16 February 2018 #Employment
An employer does not have to take every possible step possible to establish whether an employee is disabled. The test is what an employer could reasonably be expected to know.
But what if an OH report stating that the employee is not disabled is wrong? Should the employer be treated as knowing that the employee is disabled?
In Donelien v Liberata UK, the Claimant was absent from work for a total of 128 days in the final year of employment. She gave reasons ranging from hypertension, stress and anxiety to a variety of different physical ailments. The OH report obtained stated that the Claimant was not disabled for the purposes of the Equality Act 2010. The Claimant was uncooperative with her employer’s subsequent enquiries and she refused to let Liberata's OH service contact her GP.
She was dismissed for persistent short-term absences and failure to comply with the absence notification procedure.
She claimed failure to make reasonable adjustments. The employment tribunal found that while she was disabled in the final two months of employment, the employer did not, and could not reasonably have been expected to, know that.
The Court of Appeal, upholding the decision, decided that the key point is whether "the employer has taken its own decision" on disability. Whilst weight can be placed on views of an Occupational Health doctor, "such views should not be followed uncritically".
There is a duty on employers to consider if an employee is disabled even when OH states that they are not. In this case, Liberata did not just accept the OH report at face value. Because the OH report did not cover all of the matters raised by the employer, it had made follow-up enquiries with OH. The employer had also based its decision on GP letters and return to work meetings.
Employers will also be relieved to see that the employee’s decision not to permit OH to liaise with her GP counted against her claim that the employer should have known that she was disabled.