It's a nightmare scenario for an employer. They have an employee who takes substantial periods of sick leave giving multiple reasons for the absence. Medical evidence is obtained which confirms that the employee is not disabled so the employer does not make any reasonable adjustments and eventually dismisses for reasons related to the absence. Then, at a preliminary hearing, a Tribunal Judge concludes that the employee is in fact disabled. Is it just a matter of having to get the cheque book out and settle the subsequent employment tribunal claim? Not according to the Court of Appeal in Donelien v Liberata UK Limited.
The duty to make reasonable adjustments is triggered when an employer knows, or could reasonably be expected to know, that an employee is disabled. It is therefore possible to defend a claim that an employer has failed to make reasonable adjustments on the basis that the employer did not know that an employee was a disabled person. However, as confirmed by the Court of Appeal in Gallop v Newport City Council, it is not enough to simply accept a medical adviser's opinion on the matter.
In Donelien an occupational health report had been issued in July 2009. At a preliminary hearing an employment tribunal found that Ms Donelien was not a disabled person at that time but by August 2009 she was.
At a full hearing on the merits of the case it was accepted by both parties that Liberata did not have actual knowledge of Ms Donelien's disability but she argued that the company did have constructive knowledge of it. The Employment Tribunal disagreed holding that it was reasonable of Liberata to conclude that Ms Donelien was not disabled as the opinion of the medical adviser was consistent with their own understanding of her health. The Tribunal also held that Liberata, while it could have done more to discover a disability, had done all that could be reasonably expected and accordingly the duty to make reasonable adjustments did not arise and Miss Donelien's claim failed. On appeal by Ms Donelien, the EAT upheld the decision of the ET.
The Court of Appeal has now unanimously dismissed a further appeal by Ms Donelien. Unlike in the case of Gallop, in this case the employer did not treat the occupational health adviser's report as conclusive on the matter of disability. Liberata had additionally taken into account its own impressions and experience from its own meetings with Ms Donelien and the inconsistent content of correspondence from her GP. Liberata had also gone back to OH for further advice because it had found the initial report to be unsatisfactory.
Liberata had though turned down Ms Donelien's offer for them to contact her GP directly, one such offer having been made in August 2009 - the date when the Employment Tribunal held her to have become disabled. Liberata had not simply refused this offer, instead they had decided it was appropriate for the OH adviser to contact the GP. However, Ms Donelien had refused to allow OH to make contact with the GP, preventing any more information becoming available. While Liberata could still have chosen to contact the GP directly the Court was of the view it was entirely reasonable of the company to insist this was done via OH. An employer need not take every possible step to establish whether an employee is disabled, the standard is what is reasonable.
There were a number of interesting practical aspects of managing an employee that arose in this case which often cause concerns to employers trying to manage ill health absenteeism. Firstly, Liberata had adjusted Ms Donelien's start time, something that was subsequently used by Ms Donelien as "evidence" that the company had knowledge of an impairment sufficiently substantial so as to amount to a disability. Temporary adjustments to working arrangements can, of course, be beneficial to those with short term health problems who would not qualify as disabled and it would be unfortunate for employers to feel unable to assist in those situations for fear of it subsequently being used against them in a Tribunal. In this case the Court of Appeal was clear that the change did not imply knowledge of disability. There is a lesson in here for employees too - being obstructive as Ms Donelien had been when refusing to allow OH to contact her GP is unlikely to pay off in the long run.