In the case of Donelien v Liberata UK Ltd [2018], the Court of Appeal had to consider whether it was reasonable to accept an employer’s defence that based on advice it had received from its Occupation Health Service (OH) coupled with its own knowledge of an employee’s absence, it was not possible for it to know that an employee had a disability and needed reasonable adjustments. To determine whether this defence was valid, the court had to consider at what stage was it reasonable to say that the employer had either actual or constructive knowledge that the employee had a disability.
What was the background?
The employer Liberata UK Limited (“Liberata”) provided outsourcing services to a number of local authorities and UK courts assisting them in the collection of court fees and other revenue collections. From 2004 Ms Donelien worked for Liberata as a court officer, preparing and presenting cases for its client the London Borough of Southwark. She was also an active union representative. At the outset her performance was satisfactory but from 2008 her attendance record started to deteriorate.
Liberata noticed that she was arriving at work late, leaving early, and taking whole days off work without prior notice. They questioned her about her attendance and she advised that she was experiencing high blood pressure, and dizziness as a consequence of the high quantity of work and pace at which she was expected to work.
Following one of her many short periods of absence in January 2009, Donelien’s GP wrote to Liberata advising that she was fit to return to work on a phased plan. However, in that letter it was indicated that she would receive ongoing treatment for her hypertension. The phased return was put in place but Donelien continued to have problems with her health. Consequently, Liberata suggested she should see an occupational health specialist. Donelien refused to see the specialist, so Liberata scheduled a meeting with her, which took place in March 2009, to discuss her ongoing health issues. That meeting did not take place because Donelien was ill. Eventually, Liberata managed to hold the postponed meeting but when it finally took place Donelien was uncooperative and confrontational.
In May 2009, Liberata referred Donelien to its occupational health service (OH), and by July 2009 the service issued a report to Liberata advising that Donelien was not disabled. The report did not address all of the questions posed by Liberata and the content provided inadequate reasoning as to why OH considered Donelien was not disabled. Consequently, Liberata requested that a further report should be prepared. A further report was provided by the OH service but the doctor who prepared this did so without meeting Donelien and again the report failed to provide a reasoned response. However, both reports suggested that she was not suffering from any mental or physical impairment or anything which had a substantial impact on her ability to carry out day-to-day activities. The reports indicated that her health issues were, "managerial not medical" in that she needed to keep her hypertension under control.
After conducting its own investigations, which included holding return to work meetings, and considering correspondence from the GP, Liberata concluded that Donelien was not disabled. It came to this conclusion on the basis that the evidence collated from the investigations suggested that it was unlikely that Donelien’s health problems would extend up to 12 months’ and the majority of the absences did not relate to illnesses connected to a disability but rather related to flus, colds and stress. Consequently, in October 2009 Donelien was dismissed as a result of her persistent short-term absences, failure to comply with the absence notification procedure, and failure to work her contracted hours. Following her dismissal Donelien filed a complaint with the Employment Tribunal on grounds of unfair dismissal, disability discrimination and other issues.
What happened at the employment and appellate tribunals?
At the employment tribunal, all of Donelien’s complaints were dismissed. However, of note are the findings which the tribunal made in relation to the issue of the disability. The tribunal held that by August 2009 Donelien had become disabled. However, it rejected her argument that Liberata had failed to make reasonable adjustments to accommodate her disability as it was not persuaded that Liberata had either actual or constructive knowledge that she had a disability. The tribunal held that on the basis of what Liberata knew at the relevant time of her sporadic bouts of ill health related absences, there was no evidence to suggest that any of these amounted to an impairment which was substantial, long term and likely to have an adverse effect on Donelien’s ability to carry out normal day to day activities for 12 months’ or longer. Additionally, it was held that knowledge of a disability could not be inferred by the responses provided by the occupation health service reports.
Dissatisfied with this outcome, Donelien pressed on to the Employment Appeal Tribunal (EAT) arguing that the tribunal had ignored established case law, set down in the Court of Appeal case of Gallop v Newport City Council which provided that an employer should not simply “rubber stamp” (i.e. rely exclusively on the advice provided) a medical report, but rather the employer should make its own decision as to whether an employee is disabled. The EAT rejected Donelien’s grounds of appeal and agreed with the tribunal. It also held that on the facts it was clear that Liberata did not simply rubber stamp the medical report it had analysed the findings of its own internal investigations and formed a view from the findings that Donelien was not disabled.
What did the Court of Appeal say?
The Court of Appeal confirmed the findings of the earlier tribunals and held that this was not a case where the employer had just rubber stamped and agreed unquestionably with the medical advisor’s report. Liberata had taken steps to consider evidence other than the reports to help it formulate a decision as to whether it considered Donelien had a disability. When it concluded that there was no disability, the duty to make reasonable adjustment was not triggered. The Court of Appeal accepted that based on the evidence before it, that Liberata did not know or could not reasonably be expected to know that Donelien had a disability as the reports both indicated she was not disabled and Liberata’s own knowledge did not point to a disability.
What lessons can you learn from this case?
- Letters of instruction to GPs, Occupational Health or any other medical professional should be drafted with questions that encourage the medical professional to provide a reasoned opinion on the issue of whether the employee has a disability.
- Where the medical professional fails to provide a reasoned response to the question of disability and simply replies, “yes” or “no” the employer should request a more detailed response as simply accepting or “rubber stamping” reports which inadequately address the issue of disability may undermine future decisions.
- Employers should hold a meeting with the employee during which, the employee’s health and medical reports and any other information should be discussed. From that discussion and having regard to previous correspondence, the employer should make its own critical analysis of whether the employee has a disability.
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