The range of pay arrangements available to firms employing ‘salaried hours’ workers...
Constructive knowledge of disability: reasonable, not perfect effort required of employer
Donelien v Liberata UK Ltd
While an employer hadn’t explored every conceivable avenue, it had done enough to avoid a finding that it had constructive knowledge of an employee’s disability and thus be liable for having to make reasonable adjustments.
Employers have a duty to make reasonable adjustments for employees who are disabled if the employer has actual or constructive knowledge of their disability. Constructive knowledge in this context is where the law says that even if the employer didn’t know an employee was disabled, it should have known. An employer can acquire knowledge via several sources, but most commonly information regarding a worker’s medical condition will be obtained from the worker or from a medical expert, such as Occupational Health (OH).
Ms Donelien worked for Liberata for nearly 11 years as a court officer and was dismissed for persistent short-term absences and failing to comply with the absence notification procedure. She gave several different reasons for her absences including stress, anxiety and hypertension. Before dismissing her, Liberata had made specific efforts to determine the precise analysis of Ms Donelien’s health:
- it had engaged with her GP
- it held numerous meetings with Ms Donelien to discuss her conditions and arranged return-to-work meetings, and
- it made a referral to OH asking a number of questions, including whether Ms Donelien had an underlying condition which could explain her absences. The OH report stated that Ms Donelien was not disabled but failed to answer Liberata’s specific questions. Liberata followed up once but a further, more detailed report again failed to sufficiently answer the questions posed
Following her dismissal Ms Donelien made various claims against Liberata, including one of a failure to make reasonable adjustments.
The tribunal held that Ms Donelien wasn’t disabled at the time of the first OH referral but was a month later. Both sides acknowledged that Liberata had no actual knowledge of Ms Donelien's disability, but the issue was whether Liberata had constructive knowledge of the disability, i.e. whether Liberata could reasonably have been expected to know about the disability. The tribunal held that Liberata had done all that could reasonably have been expected to discover whether Ms Donelien was in fact disabled. She appealed, essentially arguing that Liberata had relied too heavily on the OH report and should have done more to find out whether she had a disability.
The EAT dismissed her appeal. It acknowledged that Liberata faced difficult questions, in particular the fact that there was not one single health condition to consider. Ms Donelien gave various reasons for her sickness absence and they were not obviously related. The EAT also acknowledged that in this case it was difficult for Liberata to untangle the work that the employee could not do due to her medical conditions and the work that she would not do.
Liberata had however made its own decision as to whether Ms Donelien was disabled and did not simply defer to the OH report. The EAT acknowledged that Liberata could have asked more questions of OH, but this was not determinative as Liberata had made other enquiries at return-to-work meetings and in correspondence with the GP, which was enough to satisfy the EAT. Ms Donelien appealed.
Court of Appeal decision
Ms Donelien’s appeal was dismissed. The issue for the tribunal was, as the Court of Appeal stressed at the outset, what Ms Donelien’s employer could reasonably have been expected to know.
Referring to the letters received by the employer from her GP, the court commented that these did not give a consistent picture; indeed ‘it is hard for a layman to know what to make of all that’. As to the role of OH, the court commented that it was reasonable for the employer to take the position that any communications with Ms Donelien’s GP should be via their OH service. Ms Donelien’s position was not helped by the fact that she refused to allow the OH service to contact her GP. This clearly went in her employer’s favour when looking at the reasonableness of lack of knowledge.
As to the extent to which the employer could reply on OH advice, the Court of Appeal referred to the case of Gallop v Newport City Council. In that case the Court of Appeal held that the employer was wrong unquestioningly to adopt an opinion from its OH adviser that an employee was not disabled – it should have asked further specific practical questions and not simply ‘rubber stamped’ the adviser’s opinion. In the present case, the Court of Appeal held that Ms Donelien’s employer had not made the same error as the employer in Gallop. Specifically, it not only took OH advice but had its own meeting with Ms Donelien and took account of her GP letters. And when the initial OH report proved unsatisfactory, the employer went back for clarification.
Lastly, the Court of Appeal made it clear that where an employer makes some adjustments to alleviate an employee’s difficulties (here it was allowing Ms Donelien to start work later in the mornings) it doesn’t necessarily require the imputation of knowledge of the elements of disability.
The Court of Appeal’s closing remarks are worth quoting: the [employer] was presented with a good deal of not very clear information, and getting a good understanding of it was not helped by [Ms Donelien’s] rather uncooperative and confrontational stance … not all of [Ms Donelien’s] absences reflected her being truly unable to work: there was an element of unwillingness too, mixed in with her substantive complaints about pay and working conditions … the [tribunal] had to disentangle what [Ms Donelien] could not do from what she would not do. This is not an easy exercise: employers are not doctors, or psychologists’.
Link to judgment: http://www.bailii.org/ew/cases/EWCA/Civ/2018/129.html
This is a reassuring decision for employers – you don’t have to take every possible step to find out whether an employee is disabled, only reasonable steps. It can be frustratingly difficult to establish whether an employee is disabled, particularly where short-term, persistent absences are concerned. Seeking help from OH is obviously recommended but, as this decision and others before have highlighted, it’s up to the employer – and the employer alone - to make a decision as to whether an employee is disabled. This cannot be shuffled off onto someone else. In Gallop, the employer lost because it seemed to do just that – take the word of OH without doing more investigation itself.
Always remember that at the end of the day, it’s your decision – but you must have taken all reasonable steps to find out. If for example, a report states that a worker is not disabled, but you have evidence that may suggest otherwise, then it may not be reasonable simply to accept the word of the expert.