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Case law: Court clarifies when employer should be treated as knowing an employee is disabled

Employers considering whether to make adjustments for an ill or injured employee should consider whether or not the employee is disabled in light of what the employee and their GP say, and any Occupational Health (OH) advice received. However, they must properly consider (not blindly accept) what they are told, or risk acting unlawfully.

March 2018

This update was published in Legal Alert - March 2018

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An employee claimed her employer had failed to make reasonable adjustments to take her disability into account. It was agreed that for the last two months of her employment she had in fact, been disabled. However, her employer argued that it did not know, and could not reasonably have been expected to know, that she was disabled, so its failure was not unlawful.

The Court of Appeal ruled that when deciding whether it was unreasonable for an employer to be treated as knowing an employee was disabled, Tribunals should ‘look for evidence that an employer had made its own decision on the issue’ and had not ‘uncritically’ accepted what it was told, especially by OH advisors.

In this case, the employer had properly considered letters from the employee's GP, and what the employee had said in return to work meetings with the employer. It had also taken advice from its own OH specialists and, importantly, had not blindly accepted or rubber-stamped what they had said. Instead, the employer had considered whether their advice ‘chimed with [its] own experience and impressions, and the two letters that [it] had received from the GP’. It had also considered whether the OH advice was informed and reasoned – evidenced by the fact it had gone back for further clarification when it considered an OH report unsatisfactory.

The Court also found that the fact the employer had agreed to changes in the employee's working hours because she had complained of tiredness in the mornings did not imply that it knew, or should have known, that she had an impairment amounting to a disability.

Generally, the Court found the employer had been presented with ‘a good deal of not very clear information’. The employer's attempts to understand the information before it was not helped by the employee's ‘rather uncooperative and confrontational stance’. In the circumstances, it was difficult to ‘disentangle what the [employee] could not do from what she would not do’, and this was ‘not an easy exercise: employers are not doctors, or psychologist’.

Operative date

  • Now

Recommendation

  • Employers considering whether to make adjustments for an ill or injured employee should consider whether or not the employee is disabled in light of what the employee and their GP say, and any Occupational Health advice received. However, it must properly consider (not blindly accept) what they are told – or risk their acts or omissions being unlawful

Case ref: Donelien v Liberata UK Ltd [2018] EWCA Civ 129

Please note: An article published in the April 2015 edition of Legal Alert covered this case at an earlier stage in the legal process.

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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