Long term or irregular absence which may amount to a disability can be a serious problem for schools. The Equality Act 2010 (“the Act”) places obligations on employers in relation to employees who are disabled. ‘Disabled’ is defined in the Act as suffering a physical or mental impairment which has an adverse effect on ability to carry out normal day-to-day activities and where the effect is substantial and long-term (over a year). 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 such adjustments as are reasonable to enable a disabled employee to be employed. This duty only arises when the employer has actual knowledge of the disability, or could reasonably be expected to know of the disability. What does this mean? It was explored 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 and then commenced disciplinary proceedings.
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 her employers could reasonably have been expected to know that Ms Donelien was disabled.
The Court of Appeal agreed with the employment tribunal that the employers did all they could reasonably be expected to have done to find out about the true nature of the health problem that Ms Donelien was experiencing. They had not depended on her GP’s letters alone and instead sought the advice of Occupational Health; carried out return to work meetings and discussions with Ms Donelien; and looked at the letters that Ms Donelien asked her GP to write for them.
The Court of Appeal concluded that the employers could not reasonably be expected to have done more. The key point was that the employers did not treat the advice they had received as conclusive. They took into account their own impressions and experience from meetings with Ms Donelien and the correspondence from her GP.
This case shows that employers should not just take occupational health reports at face value. Although such reports are important (and the Judge in the case said as much), such views should not be followed uncritically.
And as always, employers should document the process they have followed to ensure that sufficient notes of their analysis are available to support their case in the event that an employee brings a claim.