In the recent case of Donelien v Liberata UK Ltd, the Court of Appeal clarified that, although occupational health reports are still important, employers should not just accept them at face value. Although employers can rely on occupational health reports, they should seek clarification and ask appropriate questions where necessary.
It might help to first set out the legal backdrop to this case.
- Legal requirements
The Equality Act 2010 (“the Act”) places obligations on employers in relation to employees who are disabled. ‘Disabled’ is defined in the Act as anyone who has 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. What falls under this has been further defined but it can include disabilities that are not visible (such as mental health conditions, dyslexia or OCD).
An employer is required under the Act to make reasonable adjustments for a disabled employee. This duty only arises when the employer has actual knowledge of the disability, or could reasonably be expected to know of the disability. This is the crux of the issue in the below case.
- The case
In the recent case of Donelien v Liberata UK Ltd, Ms Donelien was employed by Liberata UK Ltd (“the employer”) as a court officer for nearly 11 years. She began to suffer from a wide range of symptoms and conditions including high blood pressure, dizzy spells, breathing problems, and work-related stress. She had several periods of absence from work.
The employer sought advice from Occupational Health who said that Ms Donelien was not disabled and suggested that her problems were “managerial not medical”. The employer went back to Occupational Health for clarification. The key point is that employer did not treat this advice as conclusive. It took into account its own impressions and experience from meetings with Ms Donelien and the correspondence it had received form her GP.
Following a disciplinary hearing, Ms Donelien was dismissed for failure to work her contracted hours and failure to comply with the notification procedures for sickness absence.
Ms Donelien brought various claims but, by the time the case reached the Court of Appeal, the only issue to be decided was whether the employer could reasonably have been expected to know that Ms Donelien was disabled.
The Court of Appeal agreed with the employment tribunal that the employer did all it could reasonably be expected to have done to find out about the true nature of the health problem that Ms Donelien was experiencing. The employer was not dependent on the GP letters and instead sought the advice of Occupational Health; it carried out return to work meetings and discussions with Ms Donelien; looked at the letters that Ms Donelien asked her GP to write for them. The Court of Appeal concluded that the employer could not reasonably be expected to have done more. This was clearly not a ‘rubber stamp’ case.
This case shows that employers should not just ‘rubber stamp’ occupational health reports. Although such reports are important (and the Judge in the case said as much), such views should not be followed uncritically and they should not just be accepted at face value.
As always, employers should document any process to ensure that sufficient notes of their analysis are available in the event that an employee brings a claim.