When will an employer be held to have constructive knowledge of an employee’s disability?

The recent case of Donelien v Liberata UK Ltd UKEAT/0297/14 provides some useful guidance on the steps an employer should take to investigate an employee’s ill-health and when an employer will be taken to reasonably have known about an employee’s disability for the purpose of making reasonable adjustments.

Ms Donelien was frequently absent from work to the extent that she was absent on 20 separate occasions amounting to 128 days of absence in her last year of employment.  The reasons she gave for her absences at the time varied from flu to wrist pain to dizziness and she always failed to follow the employer’s absence notification procedures.  She was referred to Occupational Health and the employer asked a number of specific questions, however the report provided did not specifically answer those questions.  The employer sought a further, more detailed report, which confirmed that on the evidence available the employee was not disabled, but still did not answer the specific questions. 

Ms Donelien was dismissed without notice on the basis of her sickness record, failure to follow notification processes and failure to fulfil her contractual hours. 

As a result, she sought to pursue claims for disability discrimination and failure to make reasonable adjustments, claiming that she had seven medical conditions that caused her to fall within the definition of disability.  The tribunal found that Ms Donelien was disabled by virtue of three, possibly four, of her medical conditions.  However, the tribunal dismissed the Claimant’s claims and in relation to reasonable adjustments, held that the employer had not known and could not reasonably be expected to have known of her disability.  The Claimant appealed to the EAT on this final point, alleging that the employer’s investigations into her conditions were insufficient and that the employer could have and should have done more to investigate and therefore ought to have known of her disability.

The EAT noted that there was no obvious pattern or underlying cause of the Claimant’s absences and criticised aspects of the occupational health reports received by the employer.  However, the EAT considered that the employer had not just relied on the reports but taken account of information provided at return to work meetings, discussions with the employee and letters from her GP.  The EAT accepted that another employer may have followed up the specific questions in the occupation health report but in this case, the employer had a whole range of information available to it to conclude that the employee was not disabled.  The EAT therefore upheld the tribunal’s decision. 

This case is a helpful reminder that employers must make reasonable enquiries to establish whether an employee is disabled, but they do not need to take every step possible in order to avoid having constructive knowledge of the disability. Employers should also be mindful that they should not unquestionably accept occupational health advice; they must also give thought to the issue of disability.

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