In a decision that will be of interest to all employers, the Court of Appeal considered constructive knowledge of disability in the case of Donelien v Liberata UK Ltd. It was held that the employer could not have constructive knowledge of disability and consequently could not be expected to have made reasonable adjustments.
The Claimant, Ms Donelien, was employed by Liberata UK Ltd (“the Company”). The Company is a large business providing outsourcing and business services. Initially the Claimant worked in a team specialising in housing benefit and council tax, however from 2004 she moved to a different role within the Company where she worked as a Court Officer.
From the latter part of 2008, the Claimant was off on sick leave for significant periods of time which involved her arriving at work late, leaving early or taking whole days off. The Claimant told her managers she was suffering from various work-related symptoms of ill-health including; asthma, low energy levels, tiredness, stress, hypertension and breathing problems.
Following a prolonged period of sickness absence, the Claimant’s GP implemented a phased return to work plan, which the Company supported. The Company also referred the Claimant to Occupational Health (“OH”). The Claimant was uncooperative with the Company and she refused to allow the Company’s OH to contact her GP. OH’s advice was that the Claimant was not disabled.
After further periods of sickness absence, the Company brought disciplinary proceedings against the Claimant; namely for her failure to carry out her contracted hours, and a failure to consistently notify the Company of her absences by 10am, in accordance with the Company policy.
At first instance, the Employment Tribunal (“ET”) held that the Company could not have known, or could reasonably be expected to have known, that the Claimant was “disabled” during the period in question. As a result the Claimant’s claim for failure to make reasonable adjustments failed. The Employment Appeal Tribunal (“EAT”) upheld this decision.
The Court of Appeal upheld the decision of both the ET and EAT that the Company could not have reasonably been expected to know that the Claimant was disabled at the material times. The Court of Appeal accepted that the Company had done all it reasonably could to find out about the nature of the health problems the Claimant was experiencing. The claim for “failure to make reasonable adjustments” therefore failed.
Whilst employers should rely on the advice of their OH advisers, it is important that employers exercise their own judgement and do not simply ‘rubberstamp’ findings of OH reports. Employers should ask OH appropriate questions where necessary as this will assist in demonstrating that the employer has reached its own reasoned conclusion on disability.