When will an employer be deemed to have constructive knowledge of an employee’s disability?

The Court of Appeal recently considered, in the case of Donelien –v- Liberata UK Limited [2018] EWCA Civ 129, when an employer will have constructive knowledge of an employee's disability.

By way of background, Ms Donelien was dismissed by Liberata in October 2009 due to persistent spells of short-term absence and for failing to comply with Liberata's absence reporting procedures. During her last 12 months of employment, Ms Donelien was absent for some 128 days for a variety of different stated reasons (including, by way of example, viruses, dizzy spells, colds, wrist pain, stomach upsets, stress and anxiety).

As a result of her absence levels, Liberata had referred Ms Donelien to occupational health in May 2009 and had asked occupational health to answer a number of specific questions. Occupational health subsequently issued a report in relation to Ms Donelien in July 2009, stating that she was not disabled. They did not, however, answer all of the questions posed by Liberata and Liberata therefore went back asking the occupational health adviser to do so. Having done so, a further, more detailed report, was issued by a different doctor, who had not met with Ms Donelien but who had liaised with the doctor who had seen her. This second report again stated that Ms Donelien was not disabled but again did not engage sufficiently with the questions Liberata had asked. Liberata did not, however, follow up a second time, albeit it did attend return to work meetings with Ms Donelien to try and understand the reasons for her absences and also reviewed correspondence provided by Ms Donelien's own doctor.

Following her subsequent dismissal, Ms Donelien brought various claims in the Employment Tribunal, including a claim for failing to make reasonable adjustments under the Disability Discrimination Act 1995 (which was then still in force). As readers will be aware, the duty to make reasonable adjustments under both the Disability Discrimination Act and the Equality Act 2010 is only triggered where the employer had actual or constructive knowledge of the claimant's disability and, for these purposes, an employer will be deemed to have constructive knowledge where it could have been reasonably expected to know of the disability.

At first instance, the Employment Tribunal found that, whilst Ms Donelien had not been disabled in July 2009, when the first occupational health report was issued, she was disabled by August 2009. It was accepted by the parties that Liberata did not have actual knowledge of her disability and the key issue, in relation to her claim relating to reasonable adjustments, was whether Liberata had constructive knowledge. In relation to this issue, the Tribunal held that Liberata did not have constructive knowledge, finding that it had done what was reasonable in the circumstances to ascertain whether Ms Donelien was disabled and that its conclusions were reasonable in light of the information before it.

Ms Donelien subsequently appealed to the Employment Appeal Tribunal, which upheld the Employment Tribunal's decision, and then to the Court of Appeal.

The Court of Appeal issued its unanimous judgment on 8 February 2018, with Lord Justice Underhill giving the lead judgment. He held that:

• the relevant test in relation to constructive knowledge was whether the employer could be reasonably expected to know at the relevant time, not whether it could have done more to investigate the issue;
• in order to have constructive knowledge of an employee's disability, the employer must have knowledge of all of the component parts of the disability definition, namely (i) a physical or mental impairment; (ii) which has a substantial and long-term adverse effect; (iii) on the employee's ability to carry out normal day to day activities;
• Liberata did not have constructive knowledge. For example: (i) the occupational health adviser had advised Ms Donelien was not disabled; (ii) notwithstanding this, Liberata had not simply rubber stamped the advice and it had formed its own impressions from its own meetings with Ms Donelien and from the correspondence from her doctor; and (iii) the correspondence from Ms Donelien's own doctor did not provide a consistent picture referring to a number of different conditions and/or symptoms, and the same could also be said of the sick notes which had been provided;
• further, even though Liberata had made an adjustment to Ms Donelien's hours by allowing her to start slightly later, this did not indicate that it had knowledge of an impairment which was sufficient to meet the disability definition set out above.

The key issues coming out of the case are therefore that, whilst employers will normally be able to rely on the advice received from their occupational health advisers, they should not do so uncritically and should not simply rubber stamp that advice. Instead, they should ensure they still form their own views, based on the advice received and also based on any other evidence before it, as to whether the employee in question might be disabled. The case also shows that, where an occupational health adviser does not properly engage with any questions which have been put to them or with the different component parts to the disability definition, the employer should follow up with them, rather than accepting potentially incomplete advice without clarification.