You will probably be aware of the longstanding obligation on employers to make reasonable adjustments, so as to avoid disabled people being placed at a substantial disadvantage when compared to their non-disabled colleagues. Logically, in order for this obligation to be activated, an employer will normally need to know that their employee is disabled. However, difficult issues can arise when there is a dispute over whether an employer knew or ought reasonably to have known about a disability. The recent case of Donelien v Liberata UK Limited has wrestled with this particular issue.
Ms Donelien worked for LUK as a court officer. She racked up almost 10 years’ service before problems with her attendance began. From 2008 onwards, she took a lot of time off work. She would arrive late, leave early or simply not turn up at all. She blamed her absences of a variety of ailments including stress, hypertension and viral infections.
After a large number of absences over a number of months, LUK referred Ms Donelien to an occupational health physician, who concluded that the cause of the absences was more “managerial rather than medical”. He found no reason to believe that Ms Donelien was disabled.
When Ms Donelien’s absences continued, and further medical evidence failed to get to the bottom of the matter, she was dismissed for failing to work her contracted hours and failing to comply with absence notification procedures.
Ms Donelien brought claims against LUK for unfair dismissal and disability discrimination, including a claim that her employers had failed to make reasonable adjustments.
Having obtained up-to-date medical evidence, the Employment Tribunal found that Ms Donelien was disabled. However, her allegation of a failure to make reasonable adjustments failed on the basis that the ET concluded that LUK did not know and couldn’t reasonably have known that she was disabled at the time she was dismissed.
Ms Donelien argued that her employer had effectively ‘rubber stamped’ the OH adviser’s opinion that she was not disabled, rather than forming its own view. Previous case law confirmed that if this was true, it would have been a mistake in law. However, given that LUK had also (i) consulted with Ms Donelien in relation to her condition and (ii) considered information provided by her own GP, the Court of Appeal concluded that the ET had been entitled to find that LUK acted reasonably and could not have been expected to do any more than it did.
Given that LUK did not know and could no reasonably have known that Ms Donelien was disabled, the ET was right to find that the obligation to make reasonable adjustments had not been ‘activated’.
What can we learn?
Had this decision gone the other way, it could have placed a worryingly significant burden on employers to investigate potential disabilities. Fortunately, the Court of Appeal has preferred a more balanced approach. Employers must do more than simply accept the word of their medical advisers. However, if they act reasonably in taking account of the other sources of information at their disposal (including the comments of the employee) before reaching their own conclusion, then an Employment Tribunal should be slow to find fault.
If you are wrestling with any absence or disability discrimination issues at the moment and need a helping hand, please get in touch.