An agency worker’s right to equal treatment in relation to the ‘duration of working...
Relying on occupational health reports to determine disability
Kelly v Royal Mail Group Ltd
An employer had not simply ‘rubber-stamped’ an occupational health report where the report dealt with the issue of disability in detail and there was no other evidence on which the employer could rely.
Mr Kelly was a postman whose sickness absence triggered Royal Mail’s absence management procedure which led to his dismissal. Among his claims was one of discrimination arising from disability (s. 15 of the Equality Act). The tribunal dismissed this claim on the basis that Royal Mail had no knowledge of Mr Kelly’s disability – and couldn’t have been expected to know. Mr Kelly appealed.
His appeal was dismissed.
Mr Kelly relied on the case of Gallop v Newport City Council where the Court of Appeal held that an employer had been wrong unquestioningly to adopt an opinion from its occupational health (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. Mr Kelly argued that this was in effect what Royal Mail had done in his case.
The EAT remarked that the tribunal had, as well as specifically referring to the Gallop decision, noted that an employer may attach considerable weight to the informed and reasoned opinion of an OH professional in reaching its own assessment. Here the evidence showed that Royal Mail had given ‘active consideration’ to whether Mr Kelly was disabled (he suffered from Carpel Tunnel Syndrome). Four separate OH reports had concluded that Mr Kelly wasn’t disabled within the meaning of the legislation. What’s more, the OH reports didn’t simply state that Mr Kelly wasn’t disabled. The last of the OH reports referred to:
- the absence of any impairment affecting Mr Kelly’s ability to work
- the fact that his prognosis was good
- the fact that there was no indication that he would be regarded as having a significant long-term impairment
- the fact that he was able to perform full duties and was asymptomatic, and
- the fact that no modifications were required to enable him to carry out his work
On the information available to the manager dealing with this:
- there was no suggestion from Mr Kelly that there was any adverse effect on his day-to-day activities
- there was nothing to alert management to the need to look behind the conclusions of the OH advisors, and
- neither Mr Kelly nor his union representative were asserting that there was a disability
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0262_18_1402.html
This is a useful decision if an employer is faced with complex medical conditions or where it simply has no understanding of the medical condition from which an employee may be suffering. In the absence of any other evidence, an employer can rely on such reports. If, for example, a report states without more that an employee is not disabled – but an employer has other evidence that may suggest otherwise – it may not be reasonable simply to accept the word of the expert. A tribunal will not expect perfection in such instances: an employer must however make a reasonable effort to discover whether an employee’s condition renders them ‘disabled’, see Donelien v Liberata UK Ltd.