Employment Review: May 2015 – Reasonable, not perfect, efforts required to avoid having constructive knowledge of disability
In Donelien v Liberata UK Ltd the EAT considered whether an employer had constructive knowledge of an employee’s disability because only if the employer did would it be under a duty to make reasonable adjustments. Constructive knowledge involves asking the question whether the employer “ought to have known” something, despite having no actual knowledge of it.
Ms Donelien was employed by Liberata as a court officer for nearly 11 years before being dismissed in October 2009 for her persistent short-term absences and failure to comply with the absence notification procedure. Ms Donelien claimed to suffer from a variety of medical conditions, including hypertension and “work-related stress”.
In the last year of her employment, Ms Donelien was absent for a total of 128 days.
She gave numerous explanations for her absences, including hypertension and generalised references to stress and anxiety, but also a number of possible viral infections, head colds and other common complaints.
In May 2009, Liberata referred Ms Donelien to its occupational health service.
Liberata posed a number of questions in the referral, including whether there was any medical condition that explained the pattern of Ms Donelien’s absences.
The occupational health report, which was issued in July 2009, stated that Ms Donelien was not disabled but did not engage with the questions which Liberata posed. However, Liberata made other efforts to investigate whether Ms Donelien was disabled including holding at least 9 “return to work” meetings, engaging with Ms Donelien and correspondence from her GP.
When Ms Donelien was dismissed she brought a number of claims in the Tribunal including a claim for failure to make reasonable adjustments. The Tribunal found that although Ms Donelien was not disabled in July 2009 when the occupational health report was issued, she was disabled by August 2009.
The Tribunal dismissed Ms Donelien’s claims. In relation to the reasonable adjustments claim, the Tribunal found that Liberata had no constructive knowledge of Ms Donelien’s disability during her employment for two main reasons.
First, it was reasonable of Liberata to conclude that Ms Donelien was not disabled.
The advice from the occupational health advisor was consistent with Liberata’s own knowledge at the time. On the facts known to Liberata, it was unlikely Ms Donelien’s medical problems would extend for a period sufficient to bring her within the definition of disability. Also, many of Ms Donelien’s absences were not due to the impairments which gave rise to her disability. They were attributed to colds, flu and generalised references to stress and anxiety which would not ordinarily lead an employer to think an employee is disabled.
Secondly, Liberata had done all it could reasonably be expected to do to discover any disability. The Tribunal noted that Ms Donelien’s “attitude of confrontation and lack of co-operation with Liberata and her refusal to allow the occupational health service to contact her GP” had been a further complicating factor.
Ms Donelien appealed to the EAT, but the EAT upheld the Tribunal’s decision.
Liberata had made up its own mind and not simply deferred the decision to the occupational health advisor. Furthermore, Liberata did do enough to escape constructive knowledge. Although another employer might have followed up on the questions it had originally posed to the occupational health service, that failure was not determinative. It should be viewed in the context of the other efforts made by the employer, which in this case were enough to satisfy the EAT that Liberata should not be deemed to have constructive knowledge. Liberata could not have been expected to do more. The test is not a “counsel of perfection”, but rather, reasonableness.
This case is reassuring for employers dealing with persistent short-term absences and difficult employees. It confirms an employer does not need to have taken every step possible to discover an employee’s disability in order to avoid having constructive knowledge of it. It is an employer’s actions as a whole that matter. Here the employer took the very sensible step of seeking to clarify unclear occupational health advice by picking up the phone, and also took into account the information from the employee’s treating doctor. Had they simply relied on the incomplete occupational health report the outcome might have been different.
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