Knowledge of disability – is it safe to rely on OH reports?

In most cases you will not be liable for disability discrimination if you did not know, and could not reasonably be expected to have known, about a worker’s disability. However, closing your mind to a potential disability will not suffice; you have a duty to take all reasonable steps to discover whether a worker is disabled. This will usually involve (but is not limited to) obtaining medical evidence, commonly in the form of an occupational health report.

OH reports will provide opinion on whether the worker is disabled. But is it safe for you to rely on that opinion? Here is some helpful guidance from recent case law:

• Your responsibility. It is you, not the medical adviser, who is responsible for making the final factual judgement as to whether the worker has a disability.
• The report will only be as good as the questions you ask. Don’t ask general questions about whether an employee is disabled; ask specific practical questions, directed to the particular circumstances of the employee's potential disability. This will put you in a better position to judge whether the criteria for disability are satisfied.
• You cannot "rubber stamp" a medical adviser's opinion that an employee is not disabled.
• You should give “active consideration” to the report, in particular to determine whether there are any inconsistencies within the report itself, or with other information you know about the worker’s condition.
• Seek further clarification from the OH adviser where necessary.
• Assess all of the facts you know about the worker’s condition when reaching a decision on whether they are disabled, such as your own impressions and experience from meeting with them and any information received from their GP (e.g. in Fit Notes).
• Don’t rely solely or unquestioningly on the OH report.
• Act reasonably. You do not need to take every step possible to establish whether a worker is disabled. The test is what you could reasonably be expected to know.
• Instruct the right person for the job! Find an experienced professional who can provide an informed and reasoned opinion, because it will be reasonable for you to attach considerable weight to their opinion.

Need HELP?

If you would like support in managing staff sickness absence and/or a free review of your employment contracts, please contact James Sage, Employment Partner and Head of Health & Social Care at [email protected].

We’ve also just launched HELP, our specialist HR and Employment Legal Protection service for care providers, offering practical, commercially-focused and pragmatic advice, allowing you to free up your management time and minimise risk in dealing with HR issues. Visit https://www.rwkgoodman.com/help/.