Posted by Gemma Ospedale, Partner
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When is constructive knowledge of disability deemed?
In Donelien v Liberata UK Limited, the EAT has stated what is required for an employer to be considered to have constructive knowledge of disability.
The employer does not have to take every possible step to establish whether an employee is disabled, just enough reasonable steps to avoid being imputed with constructive knowledge of the disability. As well as relying on a (flawed) occupational health report, the employer also took other steps in coming to the conclusion that the employee was not disabled for the purposes of the Disability Discrimination Act 1995 which was applicable to the case in question. Accordingly the employer did not make any adjustments even though the occupational health report flagged up issues that could have been investigated further. The EAT considered that, viewed as a whole, the employer had taken enough steps to avoid being imputed with constructive knowledge of disability.
When looking at the facts of this case, one can understand why the employer dismissed. The Claimant was dismissed after 11 years for persistent short term absenteeism and failing to comply with the absence notification procedure. She allegedly suffered from various medical conditions including work related stress. She demonstrated an obstructive approach to her employers and assumed that she could unilaterally decide to stay away from work without informing her employer. She consulted her GP but refused to allow the company’s occupational health service to contact the GP. Her last year of employment totalled absences of 128 days. There were numerous explanations for these, ranging from hypertension, stress and anxiety to viral infections, difficulty breathing and head colds.
The occupational health report stated that she was not disabled but it did not respond to the specific questions posed by the employer, one of which whether there was any underlying medical condition which explained her absences. The employer did not follow up the lack of response, but did investigate whether she was disabled by holding return to work meetings and engaging with her and her GP.
In the circumstances, it seems an eminently sensible conclusion that the employer had done all that it reasonably could to ascertain whether or not she suffered from a condition which comprised a disability.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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