Constructive guidance from the Court of Appeal in a disability case
Employers are often faced with the difficulty of trying to understand what can be very mixed messages given by employees in relation to continued periods of sickness absence. The employer often has to try and disentangle what the employee cannot do (supported by medical evidence) from what the employee does not do (for reasons unconnected with any ill health/disability). This is hard because employers are not doctors or psychologists, but, in trying to manage such cases, they can, with the benefit of hindsight, in front of a tribunal, be deemed to have acquired constructive knowledge of a disability – and such a finding will have a significant (and detrimental) effect on whether the employer acted reasonably in its management of the situation, especially if the outcome of the process is a dismissal (actual or constructive).
In the case of Donelien v Liberata UK Limited [2018] EWCACIV129, the Court of Appeal (CofA) gives some useful guidance on constructive knowledge in its judgment, which upheld the ET’s decision that the employer did not know, at the relevant time, that the employee was disabled (and so the employer had no duty to make reasonable adjustments).
This particular case was bought under the now repealed Disability Discrimination Act 1995 (DDA), but the CofA made the point that the relevant terms of the DDA are identical to those now provided for in the Equality Act 2010.
Law
The CofA’s analysis of the law was as follows:
- The duty to make reasonable adjustments arises when a “PCP” places a disabled person at a substantial disadvantage;
- If that is the case, it is the duty of the employer to take such steps as are reasonable, in all the circumstances, in order to prevent the “PCP”, or feature having that effect;
- But, nothing in the section imposes a duty on the employer if the employer does not know and could not reasonably be expected to know; first, that a person suffered from (a) an impairment, physical or mental, (b) that, that impairment had a substantial and (c) long term effect; and second, that a “PCP” placed that person at a substantial disadvantage, such that steps might be taken to prevent such disadvantage
Facts – the details of which are all too familiar
Mrs D was employed for eleven years, but in her last few years she had a very poor sickness record. In her last year of employment, leading up to her dismissal, she was absent on twenty separate occasions for a total of one hundred and twenty-eight days. The ET described her attendance as “erratic and occasional“. She was dismissed without notice on 23 October 2009, for: unsatisfactory attendance, failure to comply with notification of absence requirements and failure to work her contractual hours.
From 2008 onwards, Mrs D began arriving late and leaving early and complained of various ailments, including high blood pressure, dizziness, breathing problems, possible depression and dyspepsia. From June 2008 until the end of January 2009, she had seven periods of absence totalling approximately eighty-seven days. The reasons for her absences were various (including colds and flu), but in early 2009, she produced a GP’s note that suggested a phased return to work, which the employer agreed to. The employer also referred Mrs D to occupational health (OH), but she was uncooperative. The employer persisted with the OH referral, even though Mrs D refused to allow OH to contact her GP. The OH report was produced in June 2009 and concluded that Mrs D was not disabled. Thereafter, Mrs D had further periods of absence, a return to work meeting which was “unproductive” and then faced disciplinary meetings, which she failed to attend. She did produce GP letters in respect of her nonattendance, and these were sent to OH who reported that the circumstances and letters did not change the initial view, namely that Mrs D was not disabled. Note: the tribunal judge found, as a matter of law, that Mrs D was suffering from a disability from mid-August 2009 onwards and the second OH report referred to above, post-dated August 2009. (However, the ET found that employer did not have constructive knowledge of the disability.)
Accordingly, the issue for the ET and the CofA, was whether the employer could “plead ignorance [of Mrs D’s disability] based on their OH advice coupled with their own knowledge of the reasons for [Mrs D’s] absences?”
On behalf of Mrs D, it was submitted that the ET had erred in law, as was found to be the case in Gallop v Newport City Council [2013] EWCA Civ 1583, in that the ET had effectively concluded that, having sent Mrs D to OH, the employer was entitled to rely on OH’s advice that an employee was not disabled, unless the employer has good reason for forming its own different view. The CofA in Gallop held that this was an erroneous approach.
Test for Constructive Knowledge
In Gallop Rimer LJ held that an employer does not need to know that, as a matter of law, the consequence of the facts constituting disability is that the employee is a disabled person, rather the employer has to know, actually or constructively, of the facts constituting the disability. The employer has to make up its own mind, not slavishly follow an OH report – in the case of Gallop, the OH report had not dealt with the three elements set out in section 1 of the DDA in any event, so was of no help to the employer. In Mrs D’s case, the CofA confirmed the legal principle that it is for the employer to decide whether or not an employee is disabled, so as to trigger the duty of reasonable adjustments; an employer cannot delegate this decision to an OH advisor.
The CofA recognised that the employer in Mrs D’s case faced difficult questions – there was not a single impairment, there were a number, which may have been, but were not obviously, related. A further complicating factor was that Mrs D adopted a confrontational attitude and, during the last year of her employment, began to tell the employer when she was prepared to work, rather than the other way around (i.e.: when she could not work due to illness). This made it very difficult for the employer to disentangle when Mrs D could not do work because of her illness/disability, as opposed to work which she simply would not do (for reasons unconnected with any disability).
The CofA went on to find that the employer, unlike the employer in the Gallop case, did not simply rely on the OH report, rather it had done (as found by the ET ) “all it could reasonably be expected to have done”, namely: (a) referred the matter to OH, (b) conducted return to work meetings (at least nine such meetings), (c) had discussions with Mrs D and (d) reviewed letters which Mrs D had asked her GP to write to the employer. This, the CofA observed, amounted to a “heavy weight of material on which to form a view“.
Accordingly, the CofA refused Mrs D’s appeal and upheld the ET’s decision that the employer did not have constructive knowledge of Mrs D’s disability, so the duty to consider reasonable adjustments was not triggered and Mrs D’s dismissal was not unfair or discriminatory.
Lessons to be learned by Employers
- Employers must form their own view as to whether or not an employee is disabled, so is to trigger the obligation to consider reasonable adjustments. This decision cannot be delegated to a doctor or OH advisor.
- In reaching its decision, the employer must consider all the facts that they have at the time of making the decision.
- Getting an OH report may be key, but the employer must not simply follow the report’s findings; any view expressed by a doctor or OH professional should not be approached uncritically.
- When instructing an OH advisor, HRBP’s should ensure that any questions asked specifically address the elements set out in any legal definition of disability and should be framed in such a way as to allow/require a reasoned opinion to be given on the issue of disability.
- An employer should carefully consider whether it is necessary to ask further, clarificatory, questions of the OH advisor in order to establish/understand OH’s reasoning, as this will help the employer to evidence the fact that it was making its own decision on the issue of disability.
Lastly, it is important to understand that these cases are fact specific and that constructive knowledge is not relevant in relation to cases involving indirect discrimination.