How do I know if my employee has a disability? Reasonable adjustments, disability discrimination and the question of knowledge
There are complex questions involved in establishing whether an employee meets the legal definition of disability.
We know that many employers struggle with the complex area of reasonable adjustments for employees with disabilities. Areas of potential confusion are whether the employee actually has a disability, and if so, whether the employer is aware of it.
The definition of disability
The Equality Act 2010 defines a disability as a physical or mental impairment that has a substantial and long term adverse effect on a person’s ability to carry out normal day-to-day activities. If a person who comes within that definition is placed at a substantial disadvantage by a provision, criteria or practice applied by their employer, as compared with a non-disabled person, the duty to make reasonable adjustments may arise, but only if the employer has actual or constructive knowledge of the disability.
Knowledge of disability: key cases
It is therefore important in the first instance for an employer to take steps to establish whether the employee is disabled. Case law, some of it recent, has provided guidance on how employers should and should not approach this question.
Gallop v Newport City Council
In this case, the employee, Mr Gallop, communicated to his employer, the Council, that he was suffering from stress. He was referred to the Council’s external occupational health (OH) provider for an assessment. When he had two subsequent periods of sickness absence, OH advised that, although he had a “stress related illness” which was work related and might be assisted by counselling, he did not have a “depressive illness” and was not a disabled person for the purposes of the law.
Mr Gallop was dismissed some time later following allegations of bullying and brought a claim for disability discrimination. The Employment Tribunal ruled that Mr Gallop was disabled but both the Employment Tribunal and the Employment Appeal Tribunal decided that the Council did not have actual or constructive knowledge of his disability, given the advice from OH that he was not disabled.
However, the Court of Appeal allowed Mr Gallop’s appeal and ruled that the Council had knowledge of his disability. The Council could not, in the Court’s opinion, rely solely on or ‘rubber stamp’ the OH report and the report’s conclusion that Mr Gallop did not meet the definition of disability. The factors that comprise an employee’s disability (namely: an impairment; a substantial and long term adverse effect; and that effect on the ability to carry out normal day-to-day activities) are the relevant ones for the purpose of establishing actual or constructive knowledge, and it is a decision for the employer as to whether those facts amount to a disability. An employer’s opinion cannot be exclusively governed by an OH report, to the exclusion of all other factors, considerations or evidence.
Donelien v Liberata UK
The above case of Gallop was seen by many as somewhat ominous for employers. In 2018, however, the case of Donelien arguably tipped the balance back, at least slightly, in favour of the employer.
Ms Donelien had a number of periods of sick leave, for which she gave varying explanations, ranging from stress and breathing difficulties to viral infections and high blood pressure. She was obstructive in her approach to OH but was eventually referred and assessed. When OH did not fully answer its queries as to whether Ms. Donelien was disabled and required adjustments, her employer asked for further clarification. OH concluded that she did not have a disability and that her problems were “managerial not medical”.
Following her dismissal for a number of reasons relating to attendance and absence notification, Ms Donelien brought an Employment Tribunal claim. She alleged that she was disabled and that her employer had failed to make reasonable adjustments.
Both the Employment Tribunal and the Employment Appeal Tribunal ruled that Ms.Donelien was disabled, but her employer had not failed in its duty to make reasonable adjustments as it could not have known, or reasonably been expected to know, that this was the case. She had been referred to OH, GP evidence had been considered, and return to work meetings had been held. Although OH’s view should not necessarily be followed uncritically, this does not prevent an employer relying on that view – especially when, as in this case, it tallied with the employer’s experiences and the GP advice provided.
The Court of Appeal upheld the decision. Ms. Donelien’s sick notes referred to a wide range of conditions; the GP’s correspondence was not consistent; and Ms Donelien herself was uncooperative and confrontational. Ultimately, given this somewhat tangled web of evidence, the employer was entitled to attach substantial weight to the OH opinion, especially as it had not accepted it unquestioningly but had followed up with further enquiries where necessary.
Mutombo-Mpania v Angard Staffing Solutions
In a similarly reassuring judgment, the Employment Tribunal and Employment Appeal Tribunal in this case suggested that there is at least some onus on the employee to contribute to their employer’s knowledge of their condition by notifying them of their disability.
Mr Mutombo-Mpania, who suffered from Essential Hypertension which resulting in a number of debilitating symptoms, informed his employer that he would prefer to do shifts ending at no later than 10pm due to his “health condition”. He did not provide any further specifics, failed to attend for a number of his night shifts and was subsequently dismissed.
The Employment Tribunal held that his employer did not and could not have known of his disability. He had failed to disclose his disability on recruitment and health forms, and when asking to change shifts, had not stated why night work impacted his condition. Although the reference to a “health condition” in his correspondence might arguably have alerted his employer to the need to make further enquiries, it was not enough to demonstrate actual or constructive knowledge. The EAT upheld this decision and in fact went further by suggesting the employee should indicate the link between their alleged disability and the impact on their ability to carry out duties for their employer. It was not enough to make vague references to symptoms without demonstrating the effect of those symptoms.
With the views of the courts in mind what, in practice, should a prudent employer do when dealing with an employee who potentially has a disability and may require reasonable adjustments? Even though the latter two of these cases are fairly encouraging for employers, a cautious approach should still be taken; ‘turning a blind eye’ and choosing simply not to ask difficult questions is too risky. Our top tips are as follows:
- If an employee makes reference to having a disability, whether in a form, correspondence, or a by way of a GP’s note, follow this up with the employee; what is the condition? What has their GP or Consultant said? How does it impact their duties? Has it resulted in any, or a pattern of, absences?
- Consider whether an OH referral is necessary. If it is, do not just ask OH whether the employee is disabled for the purposes of the legal definition under the Equality Act, but ask practical questions too. What is the impact on the employee’s ability to carry out normal day to day tasks/work duties? Is it long term? What adjustments could be made to mitigate those effects?
- Although substantial weight can be attached to the views of OH, do not substitute the OH view for your own. If the questions asked of OH are not answered adequately, seek further clarification, especially if there are obvious gaps in the OH report as to why an employee has been deemed not to have a disability and you are concerned that something may have been overlooked.
- Consider the adjustments recommended by OH, and implement them where it is reasonable to do so. What is ‘reasonable’ is a fact sensitive question which is assessed by reference to factors such as cost, the size and the resources of the employer, and the practicability of the adjustment. Generally speaking, if an adjustment can be relatively easily accommodated, it is probably the safest approach to be proactive and implement the adjustment.
Philip Loftus (firstname.lastname@example.org) is a Solicitor in the Employment, Pensions and Immigration Team and is based in Liverpool. If you have any questions, please do not hesitate to contact Philip or speak to your usual Weightmans advisor.