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Case law: Court clarifies when employers can rely on occupational health reports saying an employee is not disabled

Employers may be able to rely on an occupational health or other medical report saying an employee is not disabled, provided the report deals with the question in detail, and there is no evidence to the contrary, the Employment Appeal Tribunal (EAT) has ruled.

July 2019

This update was published in Legal Alert - July 2019

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 with a history of poor attendance missed work as a result of surgery for carpal tunnel syndrome. This triggered sanctions under the employer’s attendance policy and the employee was dismissed. He claimed disability discrimination.

The law says there can only be discrimination if an employer has actual or constructive knowledge of facts that constitute an employee’s disability, ie, that show they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day duties. The employer does not also need to know that, as a matter of law, the consequence of such facts is that the employee is disabled.

The employer argued that it did not have actual or constructive knowledge of the employee’s disability because it had obtained occupational health reports which said that the employee was not disabled.

The employee relied on a previous ruling that employers should not unquestioningly adopt opinions in occupational health reports that an employee was not disabled. Instead, it should “make the factual judgment as to whether the employee is or is not disabled: [it] cannot simply rubber-stamp the adviser's opinion that he is not”. It said that the employer had failed to make that judgement in this case.

Here, the Employment Appeal Tribunal (EAT) ruled that:

  • the occupational health reports dealt in detail with the issue of whether the employee was disabled; and
  • the employee submitted no contrary evidence, nor was there any contrary evidence from any other source.

This meant that, unlike in the previous ruling where no reasons had been given for the opinion in the occupational health report, the employer in this case was entitled to rely on the report’s conclusion that the employee was not disabled.

Therefore, there had been no disability discrimination. It was irrelevant whether or not the employee was in fact disabled.

Operative date

  • Now

Recommendation

  • Employers should think about whether they can rely on occupational health or other reports on employees which say they are not disabled, by considering whether the report deals with the question in detail and whether there is any evidence to the contrary.

Case ref: Kelly v Royal Mail Group Ltd UKEAT/0262/18/RN

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