Ascertaining whether an employee has a disability

Charles Wynn-Evans examines the issues arising from HR referring an employee to occupational health and the lessons to be learnt from two cases that focused on whether the employers had “constructive” knowledge of disability.

Employers refer employees for review by an occupational health (OH) specialist to assist them in addressing issues as wide ranging as the adjustments which can be made to address the consequences of an individual’s disability, facilitating return to work from long-term sickness, whether sickness absence is genuine, and an individual’s ability participate in a disciplinary or grievance process.

Involving OH will hopefully assist employers in compliance with their employment and health and safety responsibilities and minimise the risk of claims. Whilst more specialist medical opinion may be needed, depending on the situation, OH can offer recommendations tailored to the particular workplace situation.

HR practitioners will often make the referral and need to ensure that they provide OH with sufficient detail to be able to understand the context of the situation and to set out the specific questions to which answers are required to address the referral.

Where the question arises of whether an employee has a disability for Equality Act purposes, a well-constructed referral will request that the OH practitioner address – as a matter of factual assessment – the requisite elements of disabled status in terms of the nature, impact, and longevity of the impairment suffered by the employee. It is important to appreciate that the OH practitioner’s opinion of whether a person is disabled does not answer what is a legal rather than medical question.

Equality Act definition of disability

Where there is a dispute in subsequent litigation about whether the employer knew or ought reasonably to have known of the employee’s disability, one issue considered in case law is the extent to which an employer can rely on the content of an OH assessment that does not indicate that the individual satisfies the Equality Act definition of disability. Without that actual or “constructive” knowledge, an employer cannot be liable for disability discrimination.

In Gallop v Newport City Council (2013) the Employment Appeal Tribunal (EAT) upheld that the employer was entitled to deny actual or constructive knowledge of the employee’s disability “by relying simply on its unquestioning adoption of OH’s unreasoned opinions that Mr Gallop was not a disabled person”.

However, the Court of Appeal held that for the employer to be allowed to evade actual or constructive knowledge on this basis was incorrect. In its view, a responsible employer has to make its own judgment on the issue and will “rightly want assistance and guidance from occupational health or other advisers”.

The employer cannot simply rubber stamp an adviser’s opinion. The Court of Appeal reiterated the need to ask specific questions addressing the particular circumstances of the individual.

In Kelly v Royal Mail Group, the employment tribunal found that the clear advice from OH, prognoses of full recovery and the observations of the claimant and the trade union representative tended to indicate that the claimant was not disabled.

In the absence of any indication that it should look beyond that evidence, the employer could establish that it did not have actual or constructive knowledge of disability. The fact that rehabilitation and adjustments had been implemented for the individual did not necessarily indicate knowledge of disability as they could equally be appropriate for a short-term or temporary problem.

The employer had done all that it reasonably could have done to establish the position. Accordingly, it did not know and could not have reasonably known that the claimant had a disability.

On appeal, the claimant argued that the employer had fallen foul of the Gallop principle by doing nothing more than relying on OH reports. The EAT upheld the decision on the basis that the employment tribunal was entitled to hold that the employer had given active consideration, by reference to all the available information, to the issue of disability including whether the claimant’s condition was likely to be long-term and/or had an adverse impact on his day-today activities.

Appropriate investigation

Referral of an employee to OH may well assist in progressing the resolution of an employee’s absence or other issues. However, both in relation to the risk of unfair dismissal and disability discrimination claims, employers need to ensure that they obtain as much information as they reasonably can in order to assess how best to proceed. This will require careful consideration in terms of the input to be obtained from the individual, whether OH or more specialist advice is needed, and the questions to be asked of the relevant advisers.

The Gallop and Kelly decisions indicate not only that an employer cannot disclaim knowledge of an individual’s disability on the basis of reliance on an OH assessment lacking in detail and rigour. However, if the employer does not rubber stamp a report unquestioningly, and does conduct appropriate investigations which do not disclose that an individual is a disabled person, then the employer may be able to establish that it should not be treated as having constructive knowledge of the individual’s disability if it transpires that the individual actually does satisfy the Equality Act definition.

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