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16 February 2018 | Comment | Article by Louise Price

Knowledge of disability


The employer was able to avoid constructive knowledge of the claimant’s disability by undertaking its own investigation into her state of health. The outcome may have been different if the employer had relied solely on the report from occupational health which concluded that the claimant did not have a disability.

Key facts

The claimant was a court officer who started to suffer health problems and periods of absence from work in 2008. Letters from her GP revealed she was suffering from work related stress.

Occupational health concluded that the claimant was not suffering from a disability. The claimant refused to allow the occupational health consultant to contact her GP.

The employer had further meetings with the claimant but she was uncooperative. In 2009 she was dismissed for failure to work her contracted hours and failure to comply with the notification procedures for sickness absence. The claimant claimed for disability discrimination and failure to make reasonable adjustments.

The Employment Tribunal concluded that the employer did not at any material time know, nor could it reasonably have been expected to know, that the claimant was disabled. Therefore the duty to make reasonable adjustments would not arise.

The Court of Appeal agreed. The letters from the claimant’s GP did not give a clear or consistent picture. Furthermore, the employer had not relied only on the GP letters, it had sought external opinion from the occupational health consultant who had concluded she was not disabled.

Importantly, the employer had also had its own meetings with the claimant and had not simply rubber stamped the occupational health consultant’s decision.

Digging into the detail

The Court concluded that the information presented to the employer had not been very clear. The employee had also been uncooperative and confrontational and not all of her absences were because she was unable to work – there was general unwillingness there as well as separate complaints about pay and conditions.

The decision confirms that an employer does not need to take every exhaustive step to establish whether an employee is disabled. To avoid having constructive knowledge of disability, the test is what an employer could reasonably be expected to know. The employer in this case had done enough to satisfy this test.

Why is this important?

It is a useful case to remind employers that they can (and should) use occupational health consultants when determining whether an employee is disabled but must ensure that they come to their own conclusion about whether an employee is disabled or not and not solely rely on the view given by their occupational health advisers.

Donelien v Liberata UK Ltd [2018] EWCA Civ 129

Author bio

A highly specialised lawyer, Louise is a Partner and Head of Employment and HR services. Her expertise includes corporate support work, TUPE, pensions and employee benefits advice. She regularly advises private, public and third sector clients regarding large scale TUPE transfers of staff including drafting indemnities and warranties, advising on potential employment and pension liabilities, information and consultation obligations, and providing best value guidance.

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