Can you rely on a medical report which says your employee does not have a disability?
When do you know that your employee has a disability? In an important case on knowledge of disability, the Court of Appeal has provided some…
When do you know that your employee has a disability? In an important case on knowledge of disability, the Court of Appeal in Donelien v Liberata UK Ltd has provided some reassurance that you can place reliance on what an occupational health report says if it tells you that an employee does not have a disability. Whilst you can’t follow it uncritically, this Judgment gives comfort to you if the report is reasoned and fits with everything else you know.
Miss Donelien had a long history of absence with her employer which appeared to be due to a variety of medical reasons. Following a complex series of events, including Miss Donelien being un-cooperative and refusing to consent to the occupational health provider writing to her GP, the employer received an occupational health report which stated that there was no evidence that she was disabled. Following dismissal and when Miss Donelien brought various claims, an Employment Tribunal found that her condition first amounted to a disability about a month prior to the date upon which she was dismissed. However, the Tribunal also held that the employer had not unlawfully discriminated in that time because the employer had not known that she was disabled. It decided that between the occupational health reports, the GP letters (which also did not say that she was disabled), and what was discussed with her at return to work meetings, the employer did not know that she had disability and could not reasonably be expected to know. The argument before the Court of Appeal focussed on what the employer knew and what it reasonably should have known.
Importantly, in the previous case of Gallop v Newport City Council, the Court of Appeal had said that an employer could not simply rely on the contents of an occupational health report to maintain that it could not reasonably know about a disability. In that case the occupational health report had provided no explanation for why it concluded that the individual did not have a disability and the court emphasised that it is for an employer to make its own decision about whether an employee is disabled. You cannot simply “rubber stamp” a medical adviser’s opinion. For obvious reasons that decision caused some concern, not least because most of us are not medically qualified and are not well-placed to challenge or second guess expert reports.
However, the Court of Appeal in Donelien has clarified the position and offered some reassurance. It says that the previous decision in Gallop was based on the court’s criticism of an employer relying unquestioningly on an occupational health opinion that offered no reasons. In this case however, the employer was found to have considered not only the occupational health reports (which did provide reasons) but also GP letters and its own return to work interviews, before making its own decision as to disability. In the circumstances it was perfectly open to an Employment Tribunal to conclude that the employer reasonably did not know of the employee’s disability. The Court of Appeal has emphasised that, in general, great respect should be shown to views of an occupational health doctor, albeit they “should not be followed uncritically”.
What does this mean for me?
If the advice you receive from your occupational health provider or other medical professional is that your employee has, or is likely to have, a disability, you will need to make decisions based upon that advice. However if the report is uncertain or advises that the employee does not have a disability, you are required to consider that advice in the context of everything else you know about the employee and determine if it is correct. This Judgment is reassuring about how far you may need to go, but if the report lacks explanation or the conclusion is inconsistent with the surrounding evidence, you will need to be careful. It may be sensible to ask questions of the occupational health provider to clarify the issue.
The most risk-averse approach is always to assume that an employee’s condition might amount to a disability even if it might not do so. However, in a case such as this, where the individual suffered from a variety of seemingly minor ailments, it could be appropriate to rely upon advice that there is no underlying disability where the report’s conclusion is explained and fits with the other facts of the case. Such an assessment could make a key difference to how far you need to go for the individual in making adjustments as the positive duty to make reasonable adjustments only applies where the individual has a disability.
We find that one of the most frequent issues with which we are asked to assist is how to handle ill-health absence. One difficult situation can be where an employee asserts they have a disability but the medical advice suggests otherwise. This case demonstrates the importance of carefully considering the evidence before reaching a conclusion about whether one of your employees is disabled. Relying upon advice provided in one occupational health report in isolation is unlikely to be sufficient. You must remember that ultimately the decision is yours as an employer and you cannot outsource this function even to external medical professionals. However, if you take a decision in the round, considering your own interactions with the individual alongside relevant medical opinions, then it will be difficult for a Tribunal to say that your efforts to establish the correct position were unreasonable even if you ultimately reach the wrong conclusion legally (as happened here). This could be the difference between successfully defending a claim and being ordered to pay considerable compensation. We are always happy to assist you with considering specific circumstances and what conclusions you can draw from the reports you receive.
If this case raises any issues for your organisation or you need assistance with ill-health/disability-related issues, please speak to your usual advisor in the Weightmans employment, pensions and immigration team, Paul Bownes (email@example.com) or Phil Allen (firstname.lastname@example.org).