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Knowledge of disability

The Court of Appeal in the case of Donelien v Liberata UK Ltd has confirmed that an employer did not have constructive knowledge of an employee’s disability where it relied on an occupational health report which stated that the employee was not disabled and where it had taken other reasonable steps to find out whether the employee was disabled.

Background

The Claimant was employed as a court officer for Liberata UK Limited (“the Company”). She was regularly absent from work citing various health problems and the Company referred her to its Occupational Health service. The Occupational Health report stated that the Claimant was not disabled for the purposes of the Equality Act 2010. However, the Claimant was uncooperative with Occupational Health and refused to allow them to liaise with her GP.

The Company followed up with a second, more detailed report, from a doctor at the Occupational Health service and also made further efforts to investigate further by considering correspondence from the Claimant’s GP and holding “return to work” meetings with the Claimant.

Following further absences, the Claimant was dismissed for unsatisfactory attendance, failure to comply with the absence notification procedure and failure to work her contractual hours.

The Claimant brought claims including direct disability discrimination and failure to make reasonable adjustments.

Decision

The parties agreed that the Company did not have actual knowledge of the disability, the issue was whether it had constructive knowledge of it.

The Employment Tribunal dismissed the Claimant’s claims finding the Company did not know and could not reasonably be expected to know about her disability. The Employment Appeal Tribunal upheld the decision.

The Claimant appealed to the Court of Appeal which unanimously dismissed her claim.

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

The Court of Appeal held that it had been reasonable for the tribunal to find that the Company did not have constructive knowledge of the Claimant’s disability. The Company had not solely relied on the first Occupational Health report which stated that she was not disabled, it had gone back for further advice and it had also considered letters from the Claimant’s GP and the “return to work” meetings with the Claimant.

Comment

The decision clarifies that employers do not need to take every possible step to establish whether an employee is disabled to avoid having constructive knowledge, the test is what an employer could reasonably be expected to know. Reliance on occupational health reports can be fine as long as they are not simply taken at face value and questions are asked to clarify any uncertainties and further steps are taken where appropriate to establish disability.

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