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May 4, 2018

Disability Discrimination – How do you Know If, or When, an Employee Actually has a Disability?

Disability discrimination can be a tricky subject, particularly the issue of what is and is not a disability and whether or not, you, as an employer, actually know about an employee’s disability.

This is a case about whether or not the employer had “constructive knowledge” of an employee’s disability. The case started back in 2008 and therefore concerns the now-repealed Disability Discrimination Act (DDA), but has implications under the Equality Act (which replaced and extended on the DDA).

The case directly hinges on the duty on the employer to make reasonable adjustments, and the part of the Act which states that there is no duty on the employer if they did not know or could not reasonably have been expected to know about the employee’s disability.

The case started in the Employment Tribunal (ET) where the ET dismissed Donelien’s claim of disability discrimination because the reasonable adjustment duty did not arise due to the employer’s lack of knowledge. Donelien appealed to the Employment Appeal Tribunal (EAT), lost, and so appealed to the Court of Appeal.

Court of Appeal’s decision on reasonable adjustments

The Court of Appeal was only concerned with a single point arising in connection with Donelien’s disability discrimination claim – her claim that Liberata failed to make reasonable adjustments in accordance with the duty then contained in section 4A of the Disability Discrimination Act 1995.

The Court of Appeal dismissed the appeal, saying that the Respondent (Liberata) “did all they could reasonably be expected to have done to find out about the nature of the health problem that the Claimant was experiencing”.

So what steps did Liberata take?

Liberata had taken the following steps to understand her health problems:

  • referred Donelien to occupational health (OH)
  • hosted return to work meetings
  • held discussions with Donelien
  • looked at the letters Donelien asked her GP to write to them

On the facts known to the employer, it was not likely that the health problems and symptoms would extend to 12 months.

This is important, as symptoms and problems must be expected to last or have lasted for 12 months or more for an employee to be considered disabled under the ambit of the DDA 1995.

Additionally, many of Donelien’s absences were not for the impairments which gave rise to disability, but a surprisingly high number of bouts of flu and colds, and very generalised references to stress and anxiety, which would not ordinarily lead an employer to think an employee is disabled.

After two periods off work, the decision was made to refer Donelien to Occupational Health (OH), but she was uncooperative and refused for OH to contact her GP. The OH adviser said she was not disabled.

When she was off sick again, a return to work meeting was held which was ‘unproductive’ and disciplinary meetings were arranged. Donelien failed to attend and provided further GP letters instead, which OH did not view as altering their earlier advice.

Deciding on “constructive knowledge” and pleading ignorance

So the issue for the Employment Tribunal, and later the Court of Appeal, was whether the employer could “plead ignorance based on their OH advice coupled with their own knowledge of the reasons for the Claimant’s absences”.

It should be noted that constructive knowledge, is relevant in the following claims of disability discrimination under the Equality Act (which replaced the DDA):

  1. arising from discrimination, and
  2. failure to make reasonable adjustments

The Court of Appeal dismissed the appeal after first reminding itself that the issue was what the employer could reasonably have been expected to know, and they had no difficulty understanding why the original Tribunal came to the conclusion it did.

To protect themselves, employers should make sure questions sent to Occupational Health are worded appropriately to allow a reasoned opinion on disability, and if they receive a straight yes or no answer in terms of disability they should always write back to get the reasoning behind this decision.

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Amy Morrison

Digital Marketing Executive

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