Michelmores, Law, Employment, Solicitor, Lawyer
Tom Stenner-Evans
Posted on 9 Mar 2015

Employment Law Update – Constructive Knowledge of disability / Fit for Work service

Only 'Reasonable' Efforts Required to Avoid Having Constructive Knowledge of a Disability

Donelien v Liberata UK Ltd [UKEAT/0297/14]

Background

Employers have a duty to make reasonable adjustments for disabled employees. The case of Donelien considered whether an employer had constructive knowledge of an employee's disability, following its reliance on flawed occupational health advice that the employee was not disabled.

The Facts

The Claimant was employed as a court officer for nearly 11 years before being dismissed in October 2009 for her persistent short-term absences and failure to comply with the absence notification procedure. She claimed to suffer from a variety of medical conditions, including hypertension and 'work-related stress'. She consulted her GP regarding her illnesses but refused to let her employer's occupational health service contact her GP.

In May 2009, the employer referred the Claimant to its occupational health service and posed a number of questions about the Claimant's condition. The occupational health report stated that the Claimant was not disabled but did not answer the questions which the employer had posed. The employer did not follow this up, but did make other efforts to investigate whether the Claimant was disabled, including holding 'return to work' meetings, engaging with the Claimant and correspondence from her GP.

After the Claimant was dismissed, she brought a number of claims in the Employment Tribunal, including a claim for failure to make reasonable adjustments.

The Employment Tribunal found that the Claimant was disabled by August 2009, but that the employer had no constructive knowledge of her disability during her employment for two main reasons. Firstly, it was reasonable of the employer to conclude that the Claimant was not disabled, as the advice from the occupational health advisor was consistent with the employer's own knowledge at the time. Secondly, the employer had done all it could reasonably be expected to do to discover any disability. It had referred the Claimant to the occupational health advisor, held 'return to work' meetings, engaged in discussions with the Claimant and reviewed the correspondence from the Claimant's GP.

The Claimant appealed to the Employment Appeal Tribunal ('EAT'), on the basis that the employer had relied unquestioningly on the occupational health report and had not done all it reasonably could to investigate the Claimant's disability.

Judgment

The EAT upheld the Tribunal's decision that the employer did not have constructive knowledge of the Claimant's disability at the relevant time. It was held that the employer had made up its own mind and not simply deferred the decision to the occupational health advisor. Although another employer might have followed up on the questions it had originally posed to the occupational health service, that failure was not determinative. It should be viewed in the context of the other efforts made by the employer, which in this case were enough to satisfy the EAT that the employer should not be deemed to have constructive knowledge.

Tips for Employers

This case provides reassurance for employers dealing with persistent short-term absences. It confirms that an employer does not need to have taken every step possible to discover an employee's disability in order to avoid having constructive knowledge of it. It is an employer's actions as a whole that matter. In addition, each case will be determined by its facts, so no hard and fast rules can be established.


Fit for Work Service Rolled out Nationwide from Today

Today sees the Fit for Work service begin to be rolled out across the country.

As we have explained in previous updates, the 'FFW' will provide free occupational health assessments and return to work plans to assist a return to work for employees who have been on sickness absence for four weeks or more. Referrals to FFW may be made by GPs and employers. Once an employee is referred, FFW will contact them to undertake an assessment, usually by telephone, with a view to creating a return to work plan.

For more information, please click here.