Employer not fixed with knowledge of employee’s disability

An employer had done enough to escape being deemed to know about an employee’s disability. 

Facts 

In Donelien v Liberata UK Ltd, Ms Donelien was dismissed in October 2009 after 11 years’ service, as a result of persistent short term absence and failing to comply with the sickness absence notification procedure.  

She claimed that she suffered from a variety of medical conditions.  In the last year of her employment she was absent for 128 days in total.  She gave numerous explanations including high blood pressure, stress and anxiety, viral infections, dizziness, difficulty breathing, reaction to medication, head colds, wrist pain and stomach upsets.  She consulted her GP and allowed the company to talk to her GP.  However, when the company referred her to its Occupational Health (OH) service she refused to allow OH to contact her GP. 

The OH report did not answer all of the company’s questions but did indicate that Ms Donelien was not disabled. The company followed this up and the gist of the opinion received was that the essential problem was “managerial rather than medical” and that her issues were linked to a dispute with the company, rather than any underlying psychiatric condition or her high blood pressure. 

Following her dismissal, she brought a number of claims, including for breach of the duty to make reasonable adjustments. The duty to make reasonable adjustments only applies if the employer knows or ought reasonably to know that an employee is disabled.  

The parties agreed that the company did not actually know of her disability and the employment tribunal decided that this was not a case where the employer ought reasonably to have known that she was disabled.  

The Employment Appeal Tribunal rejected her appeal and she appealed to the Court of Appeal.   

Decision

The Court of Appeal dismissed her appeal.  The test was whether the employer could reasonably be expected to know that Ms Donelien was disabled, not whether it could have done more to establish this.  For an employer to be deemed to know of an employee's disability, it must have knowledge all three elements of disability i.e. that the employee has:

• A physical or mental impairment
• Which has a substantial and long-term adverse effect
• On their ability to carry out normal day-to-day activities.

It had been reasonable for the tribunal to conclude that the company could not reasonably have been expected to know that Ms Donelien was disabled. The GP correspondence and sick notes did not give a consistent picture of her medical problems. The OH report indicated that she was not disabled and the company had not relied unquestionably on this but had also taken account of information provided during return to work interviews and in GP letters.  Once the company had instructed OH, it was reasonable for it to take the stance that discussions with the GP should be via OH and Ms Donelien had refused to allow this.  The tribunal had taken a healthily critical view of what the employer had done to establish whether Ms Donelien was disabled and had been entitled to come to the view it had.  

Implications

Employers should not rely unquestionably on OH opinion when considering whether an employee is disabled.  However, they are entitled to attach weight to an informed and reasoned opinion.  Where the OH opinion does not answer all of the employer’s questions, they should ensure they follow this up and take other steps to establish whether the employee is disabled, including discussing the issue with the employee and their GP.  The fact that Ms Donelien refused to allow OH to talk to her GP did not help her when it came to arguing that her employer ought to have known she was disabled.