Last week, the NHF published its final version of its new Code of Governance and made some important changes from the previous draft that will impact on those housing associations looking to adopt it.
In Donelien v Liberata UK Ltd, the Court of Appeal confirmed that an employer who had taken all reasonable steps to investigate an employee’s health problems could not reasonably have known that the employee had a disability.
The Claimant, Ms Donelien, had worked for Liberata since 1999. In the second half of 2008 onwards, she began arriving at work late or leaving early, which she attributed to various problems including high blood pressure, dizziness and breathing problems. Following a period of absence in November 2008, she informed her manager that her illness was work-related.
After a further absence, Ms Donelien’s GP wrote to Liberata suggesting a phased return with reduced hours. Liberata agreed. However, Ms Donelien’s health problems continued. Liberata suggested a referral to occupational health (OH), but Ms Donelien refused. She continued to have periods of absence and her GP wrote to Liberata in April 2009 to advise that Ms Donelien’s most recent absence was due to a stomach upset and wrist pain, for which the GP had found no underlying problem.
Ms Donelien’s manager conducted a return to work interview with her in May 2009, at which she was uncooperative and confrontational. Her manager told her that she must certify absences properly and phone in by 10 am if she was going to be absent. The following day, Ms Donelien provided a further letter from her GP indicating that she could only work three days a week due to hypertension and stress.
Liberata made a referral to OH, but Ms Donelien refused to allow OH to contact her GP. OH’s advice was that Ms Donelien was not disabled, although Liberata requested clarity as not all of the questions had been answered fully by OH. A second doctor, who had discussed the case with the first, wrote at greater length and surmised that the issues were “managerial not medical”.
Following further periods of absence and an unproductive return to work interview, Liberata instituted disciplinary proceedings for unsatisfactory attendance and failure to comply with notification procedures in late August 2009. Ms Donelien went off sick again, and Liberata requested a further OH report. OH was of the view that Ms Donelien was fit to attend grievance and disciplinary meetings. Ms Donelien’s GP provided an additional letter, which Liberata forwarded to OH, but it did not change their earlier advice that Ms Donelien was not disabled.
Ms Donelien was subsequently dismissed and pursued various claims against Liberata, including for a failure to make reasonable adjustments.
The Employment Tribunal found that she was disabled by 24 August 2009, but the issue for the Employment Tribunal, and later the Court of Appeal, was to decide whether the employer could “plead ignorance based on their OH advice coupled with their own knowledge of the reasons for the Claimant’s absences”.
This case related to the now repealed Disability Discrimination Act (“DDA”), but is likely to be equally relevant to cases dealt with under the Equality Act 2010 (“EqA”).
Both the DDA and EqA provide that an employer will not have to make reasonable adjustments if it did not know, and could not reasonably have been expected to know, that the employee had a disability. This test of actual or constructive knowledge is also relevant for a claim of discrimination arising from disability under the EqA.
The Court of Appeal agreed that the Employment Tribunal was entitled to find that Liberata did not have actual or constructive knowledge of Ms Donelien’s disability. Liberata had done all it could reasonably have been expected to find out about the nature of the health problem that Ms Donelien was experiencing. They had sought advice from OH on several occasions, and asked for clarification where necessary, and were advised that Ms Donelien did not have a disability, but Liberata had not taken that as conclusive. They had also had meetings with Ms Donelien and had taken account of the GP letters, which they’d also passed to OH to see whether the GP’s information changed OH’s view.
This was in contrast to the outcome in the case of Gallop v Newport City Council in which OH consultants for Newport City Council had repeatedly advised that Mr Gallop, who had been suffering depressive symptoms for several years, did not have a disability. The Council had relied on OH’s advice, despite the advice not containing any explanation or analysis of Mr Gallop’s condition and whether it was long-lasting or had a substantial effect on his ability to carry out day-to-day activities. In that case, the Court of Appeal found that the employer could not just “rubber stamp” OH’s advice and rely on it exclusively to support that it did not and could not reasonably have known about the employee’s disability - it should have done more.
As is a common theme in employment law, this case concerned “reasonableness” and specifically whether the employer had reasonably concluded that the employee did not have a disability.
The key message from the case is that when faced with this type of scenario, an employer should ensure that when requesting advice from OH it asks appropriate questions to allow for a reasoned opinion on disability. Information from the employee about their condition and any evidence they provide in support will also need consideration, and it might be appropriate to obtain updated advice from OH where such additional information is provided.
The fact that the employee, in this case, was found to have been obstructive and uncooperative but that the employer had nevertheless persevered no doubt assisted the employer in a finding that it had acted reasonably. Not “losing patience” and making a rash decision is really crucial.
For more information
If you require assistance managing your sickness absence process or a difficult disability discrimination case, please get in touch with your usual contact in our Employment Team or speak to Rebecca Reid. You can find out more about our employment work on our website.
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