Disability – what do you know?

The Court of Appeal has handed down its decision in Donelien v. Liberata UK Ltd (see here) and provided reassurance to employers that they can rely on occupation health advisers in deciding the question of disability. However, this is subject to employers making their own enquiries also.
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.
Following her dismissal, Ms Donelien brought claims before the tribunal, including a claim for failure to make reasonable adjustments. A tribunal found that Ms Donelien was disabled before her dismissal. However, the tribunal and the EAT dismissed her claims. Ms Donelien appealed to the Court of Appeal.
Court of Appeal decision
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.
  • The adjustments that Liberata had made to Ms Donelien’s working conditions did not imply that it had knowledge of a disability.

The courts could have decided the case differently if Liberata had not made its own further enquiries on receiving inadequate reports from Occupational Health. However, the Court of Appeal has provided some assurance that employers can take into account the advice of occupational health advisers when determining if an employee is disabled. This is a helpful finding following the previous case of Gallop v. Newport City Council [2013], which cast doubt on employers relying on occupational health reports.

Verity Buckingham

About Verity Buckingham

Verity is experienced in all aspects of employment law and corporate immigration matters. She deals mostly with corporate clients advising on contentious and non-contentious employment matters. Verity's contentious practice includes defending claims in the Employment Tribunal and experience of Employment Appeal Tribunal litigation in relation to claims of unfair dismissal, discrimination, equal pay and whistleblowing.

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