Reasonable, not perfect, efforts required to avoid having constructive knowledge of a disability

In a recent case of Donelian v Libertata (Donelian), the EAT held that an employer took reasonable steps, but not every step possible to ascertain whether an employee was disabled did enough to avoid having constructive knowledge of the disability.

Ms Donelian, working at Liberata for 11 years was dismissed in 2009 due to her persistent short-term absences and failure to comply with the absence notification procedure. Ms Donelian subsequently issued claims at the tribunal including a claim for failure to make reasonable adjustments.

This case is reassuring for employers dealing with persistent short-term absences and difficult employees. It confirms an employer does not necessarily need to have taken every step possible to discover an employee's disability. It is an employer's action as a whole that matters. However, it also confirms that each case will be determined by its facts, so no hard and fast rules can be established.

Under the Equality Act 2010, Employers have duty to make reasonable adjustments for who are "disabled", meaning they have a physical or mental impairment which has an adverse effect on their ability to carry out normal day-to-day activities and the effect is substantial and long-term. The Court of Appeal found in Gallop v Newport City Council that employers must come to their own conclusion on whether an employee is disabled or not and they should not rely solely on the view given by their occupational health service.

The duty to make reasonable adjustments is owed when the employer has actual or constructive knowledge of an employee's disability, i.e. where the employer could reasonably be expected to know of the disability. An employer is not under a duty to make reasonable adjustments if it does not know, and could not reasonably be expected to know.

According to EAT, an employer is only exempt from the duty to make adjustments if it can satisfy all four of the following conditions:

• It does not know that the disabled person has a disability.
• It does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled.
• It could not reasonably be expected to know that the disabled person has a disability.
• It could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

In Donelian, the EAT considered whether an employer had constructive knowledge of an employee's disability, following its reliance on a flawed occupational health advice (amongst other information) that the employee was not disabled.

The case underlines the difficulties faced by employers where an employee is repeatedly absent due to a multitude of conditions, some of which may not be the impairments that gave rise to the subsequent ‘disability’. Particular complicating factors in this case were Ms Donelien's condition not having consistent or consistently described effects and the difficulty in making a distinction between what she could not do from what she would not do. While such situations are frustrating, employers should always keep in mind the possibility that the underlying cause of the absence could be a disability manifesting itself in varying ways. This is particularly the case when dealing with conditions arising from work-related stress. Furthermore, as in this case, an employee can progress from not being deemed disabled to being disabled in a short period of time.

The EAT did not comment on the tribunal's concern at the occupational health advisor reaching conclusions without having met or spoken to the employee. If this were an issue it would have significant implications for the new Fit For Work service, in which occupational health advisors will normally prepare a report without the benefit of a face-to-face meeting.
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
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