What steps should you take to find out?
It’s a question which crops up regularly when managing a variety of processes – if an employee has a particular health condition, are they likely to meet the definition of being disabled? Previous cases have considered the extent of the employer’s ‘constructive knowledge’, where they should have known that the employee is disabled.
The Court of Appeal has now provided helpful new guidance on this question in the case of Donelien v Liberata UK Ltd.
The case related to the duty to make reasonable adjustments, which of course only arises when an employer has actual or constructive knowledge of the employee’s disability. Constructive knowledge will only be found where the employer could be reasonably expected to know about the disability.
Previous case law had established that an employer could not avoid constructive knowledge by relying on an occupational health report alone, without coming to their own conclusions. In Donelien the Court of Appeal looked at what extra steps an employer might be obliged to take.
Liberata had obtained an occupational health report which stated that she was not disabled (and in fact was not suffering from a physical or mental impairment at all). In addition, Liberata had looked at previous evidence from her GP and had gone back to the OH doctor for clarification and further advice.
The fact that Ms Donelien had been obstructive during the process also assisted Liberata in its arguments. The Court of Appeal, therefore, agreed with the tribunal that Liberata had done enough to avoid constructive knowledge and so had no duty to consider reasonable adjustments.
This case demonstrates that an employer does not have to take every step possible and bend over backwards when looking at medical evidence to determine the question of disability. As long as they act reasonably, constructive knowledge will usually be avoided.
Useful steps include:
- Obtaining an occupational health report
- Seeking clarification and further information in respect of the report, especially if it’s ambivalent or incomplete
- Asking appropriate questions of the employee and the OH doctor
- Taking into account your own impressions and experience of dealings with the employee, and documenting these
- Reviewing correspondence from other medical professionals if relevant
- Obtaining advice from a specialist doctor if considered necessary.
The case underlines the benefits in these cases of acting reasonably, considering the evidence and not relying on the face value of an occupational health report.