The Court of Appeal has upheld a tribunal’s decision that Liberata UK Limited (“LUK”) did not have constructive knowledge of an employee’s disability and, therefore, had no duty to make reasonable adjustments.

The employee, Ms Donelien, worked for LUK as a court officer, before being dismissed in October 2009 for persistent short-term absences and failure to comply with LUK’s absence reporting procedures.  In the last year of her employment, Ms Donelien was absent for 128 days, giving LUK numerous explanations for these absences, including work-related stress, high blood pressure, dizzy spells, stomach upset, wrist pain and breathing difficulties.

In January 2009, following a period of absence and a letter from Ms Donelien’s GP, it was agreed that Ms Donelien would have a phased return to work, however, her health problems continued.  LUK sought to refer Ms Donelien to an Occupational Health specialist (“OH”) but Ms Donelien was uncooperative and refused.

Ms Donelien’s absences continued and in April 2009, LUK received a second letter from Ms Donelien’s GP which confirmed that she was fit to return to work.  Some weeks later, following a further letter from the GP, LUK again referred Ms Donelien to OH. As part of the referral, LUK posed several questions to OH which included whether there was any medical condition which could explain Ms Donelien’s repeated absences, how long such a condition was likely to last and whether there were any recommended adjustments.

The OH report stated that Ms Donelien was not disabled, but it did not respond to all of LUK’s questions.  LUK sought further clarification and received a more detailed report from OH, from a different doctor who had only spoken to Ms Donelien by phone, but some of the questions remained unanswered.  Although LUK did not again revert to OH, further attempts were made by LUK to understand Ms Donelien’s condition during the return to work meetings but proved to be unproductive.  Ms Donelien was uncooperative and, at times, confrontational during such meetings.

LUK initiated disciplinary proceedings and Ms Donelien was ultimately dismissed.  Ms Donelien brought claims in the employment tribunal claiming, amongst other things, that she was disabled and that LUK had failed to make reasonable adjustments.

The tribunal dismissed all of Ms Donelien’s claims, finding that in respect of her reasonable adjustments claim, LUK had no constructive knowledge of Ms Donelien’s disability during her employment.  It was reasonable of LUK to determine that Ms Donelien was not disabled.  LUK had sought advice from OH which was consistent with their own knowledge at that time, and had done all that they could be expected to do.

The EAT upheld the Tribunal’s decision and Ms Donelien appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal, finding that is was reasonable for the Tribunal to conclude LUK did not have constructive knowledge of Ms Donelien’s disability.  The Court of Appeal noted that the correspondence from Ms Donelien’s GP did not present a consistent picture, citing numerous conditions and symptoms suffered by Ms Donelien.  LUK had sought advice from OH and asked appropriate questions as part of their referral.  The OH report had advised that Ms Donelien was not disabled within the meaning of the Disability Discrimination Act (“DDA”).  However, LUK did not deem the report to be conclusive, and they sought to obtain further advice following receipt of the initial OH report.  LUK had considered its own impressions from the meetings held with Ms Donelien and also the correspondence from her GP.

Comment

This decision offers reassurance to employers that provided they ask OH relevant and appropriate questions, and the answers they receive are properly considered and, where necessary, probed, they can rely on OH’s advice when determining whether their employees are disabled.  The message being that scrutiny is key – OH reports should not be taken at face value and if a report does not adequately deal with the issues raised, further questions should be asked.

This decision confirms that the test for constructive knowledge is what an employer could reasonably be expected to know; it is not necessary for an employer to take every step possible to establish disability.

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