Constructive knowledge of disability – developments in ‘rubber stamping’
Let’s set the scene.
You are in your office. Phones are ringing and emails popping up every few seconds. There’s a pile of paperwork to deal with, and you have a meeting in 5 minutes.
What lands on your desk? An occupational health report for one of your employees. Emblazed on the front of this report are the words ‘We do not consider that this employee is disabled’.
Both metaphorically and literally you brand this report with your approval. This absolves you from any further considerations at to the contents or other considerations. After all, an expert has confirmed that this employee doesn’t have a disability. Why, oh why would you need to consider this any further than you already have?
This would be a classic case of ‘rubber stamping’ – to automatically approve the contents of a document or report without due and proper consideration.
Employer still responsible for considering the detail of the report
A recent run of case law has said that this is a big ‘no no’. The case of Gallop v Newport City Council went to the court of appeal on this exact point. Whilst the occupational health specialist may well say in their occupational health report that the individual employee is not disabled, this does not absolve the employer of the obligation to consider the report in detail and make a judgment of fact as to whether or not – in their opinion and based strictly on the evidence in front of them – they consider that the employee is disabled.
The Court of Appeal confirmed in Gallop that employers are not entitled to engage with the unquestioning adoption of an occupational health specialist’s opinion as to whether an employee is disabled or not. The Court of Appeal commented – “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.”
You would be forgiven for thinking that you had to cancel that order of gigantic vulcanized embossers. (I’ll level with you that this was definitely stretching the synonyms of large rubber stamps – I was going to opt for neoprene imprinting tool, but that sounded ridiculous).
But, along came the case of Kelly v Royal Mail Group Limited.
Prior knowledge of a disability
Mr Kelly was a postman with an admittedly poor attendance record. He was dismissed (somewhat harshly) for having surgery to treat Carpal Tunnel Syndrome in each of his hands. Unfortunately for Mr Kelly, the absence procedure from the Royal Mail said that at the final stage of the process, if there is further absence, then the employer was entitled to look at the whole of his attendance history and decide whether he was likely to have better attendance in the future. They decided he wasn’t and so opted dismiss him.
The dispute in Kelly was not about whether he was disabled. It was (amongst other things) about whether Royal Mail had knowledge of this before they took their decision. For a disability discrimination claim to be successful an employer must be said to have had knowledge of a disability. Or could be said to be reasonably expected to have knowledge (known as constructive knowledge).
As with Gallop, the Royal Mail commissioned an occupational health report. And, as with Gallop, this report confirmed that the Claimant, Mr Kelly, was not disabled. (This is despite the fact that Mr Kelly was disabled actually being agreed by the parties at the preliminary stage of proceedings).
As with Gallop, the Royal Mail relied on the Occupational Health report in coming to its decision and did not undertake any additional enquiries.
However, it was found in Kelly that the Royal Mail was entitled to rely solely on the Occupational Health reports. Also, that (despite this being their only real source of independent information and evidence) this was found to not be a ‘rubber stamping’ exercise.
As you read this summary I can hear the exclamations of ‘but why’. Why is reliance on one report rubber stamping and reliance on another not rubber stamping?
As we know to be the case, not all occupational health reports are created equal.
In Gallop the report was unsubstantiated, unreasoned and contained a bare statement of opinion without analytical depth. This report didn’t allow employers to rely solely on it without there being another type of justification for their decision.
The report in Kelly was materially different. This contents were reasoned and contained far more than just a bare assertion. It also gave evidence that would’ve allowed the employer to satisfy itself of the statutory question – whether the employee was disabled. There was also evidence that despite the reports being the only piece of evidence, this was actually the fourth report commissioned. It was noted in this case that the final report was actually much more detailed than the previous three. Therefore the employer was entitled to use this report to form their view.
Whilst this represents a development in this area of constructive knowledge, it does confirm the same basic principles. An employer cannot abscond itself from knowledge of a disability based solely on an unsubstantiated or unreasoned opinion of an occupational health provider. They can, however, use the contents of such report as a basis for their own factual justifications. This is as long as there’s sufficient evidence for them to reasonably answer the statutory question as to whether or not an employee is disabled.
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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