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Employer's knowledge of disability

Posted by TonyBrownEmploymentSolicitor on December 2, 2013

In a ruling that is likely to cause alarm to many employers, the Court of Appeal has ruled that an employer was not entitled to rely on an occupational health report when deciding whether an employee was disabled.

An employer's duty to make reasonable adjustments for a disabled employee only arises where the employer knows or is reasonably expected to know that the employee is suffering from a disability and, as a result, is likely to be placed at a substantial disadvantage.

In the next case, the Claimant suffered from depression brought on by work related stress. Based on advice in an occupational health report that the Claimant’s medical condition did not meet the legal definition of disability, the Claimant was dismissed. Although the Claimant’s claim for unfair dismissal was successful, his claim for disability discrimination failed both in the employment tribunal and the EAT, because it was decided that, in view of the findings of the occupational health report, the employer did not know that the employee was disabled.

Overturning the decision of the EAT, the Court of Appeal stated that the occupational health advisers had done no more than express their unreasoned opinion that the Claimant was not a 'disabled person' within the meaning of [the DDA.] It was not an opinion that the employer was entitled to adopt to support its assertion that it was ignorant of the fact that, as the ET was later to find, the Claimant was a disabled person. The question for the ET was not what OH's opinion on the matter was but whether the employer had actual or constructive knowledge of the facts constituting the Claimant’s disability. The ET went astray by regarding the employer’s knowledge of the disability as exclusively governed by OH's opinion as to whether the Claimant was a disabled person. The task for the ET was to inquire and making findings as to employer’s actual or constructive knowledge at the material times of the facts constituting the disability from which the Claimant suffered. It did not perform that task. An employer has to form its own judgment on whether an employee is or is not a disabled person.

Comment

Most employers will see this as a hard result. The problem with some types of claimed disability is that it is only when eventually the ET rules on the question that it is known whether an employee was in fact a disabled person. In the meantime, however, a responsible employer has to make his own judgment as to whether the employee is or is not disabled. In making that judgment, the employer will rightly want assistance and guidance from occupational health or other medical advisers. That guidance may be to the effect that the employee is a disabled person; and, unless the employer has good reason to disagree with the advice, he will ordinarily respect it in his dealings with the employee. In other cases, the guidance may be that the opinion of the adviser is that the employee is not a disabled person. In such cases, the employer must not forget that it is still he, the employer, who has to make the factual judgment as to whether the employee is or is not disabled: he cannot simply rubber stamp the adviser's opinion that he is not.

This case illustrates the need for the employer, when seeking outside advice from clinicians, not simply to ask in general terms whether the employee is a disabled person within the meaning of the legislation but to pose specific practical questions directed to the particular circumstances of the potential disability. The answers to such questions will provide real assistance to the employer in forming his judgment as to whether the criteria for disability are satisfied.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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