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Uncooperative employee loses disability rights protection

The duty on a UK employer to make reasonable adjustments applies only when it knows or ought to know about an employee’s disability. Establishing actual knowledge is easy enough, but what about constructive awareness, where the employer obviously does not know but is nonetheless being expected to act as if it did?

In Gallop -v- Newport City Council in 2013, the Court of Appeal decided that an employer could be saddled with constructive knowledge that an employee was disabled, even in circumstances where the Occupational Health advice it received was that she was not. That superficially surreal conclusion was based on a number of deficiencies in the OH report in that case and (in particular) in the limited questions which Newport had asked its OH provider in requesting it. That made it unreasonable for Newport to rely on the OH evidence, especially in the face of what Ms Gallop herself was telling it to the contrary, hence the adverse finding on knowledge.

But, as the cases all make clear, most employers are not doctors, so how genuinely are they to know when they can rely on the evidence of someone who is? In Donelien -v- Liberata UK Limited this month, the Court of Appeal has given some more useful guidance on doing it properly.

From 2004, Edith Donelien worked on housing benefit cases for the London Borough of Southwark. From mid-2008 her attendance and timekeeping record started to go downhill. She said she was suffering from low energy and tiredness in the morning due to high blood pressure, plus dizziness and breathing problems. Late in November 2008, she began to say that the issues were work-related – too much pressure, scant resources and an airless office.

On receipt of advice from Donelien’s GP, Liberata agreed to a phased return to work, but her medical and absence issues continued. She objected to referral to an external OH provider, and produced further medical certificates now referring to issues with her stomach and wrist (neither obvious consequences of high blood pressure). At an interview with her line and HR management in May 2009, she was uncooperative and confrontational. She refused to confirm the accuracy of Liberata’s records of her absence and demanded to speak to its CEO. She refused again to see OH and was not prepared to impose on herself in her weakened state the “pressure” of ringing by 10am on any day she was not coming in, as per Liberata’s standard absence reporting procedures. It was by all accounts a difficult meeting.

Undaunted, Liberata sent Donelien off to see its OH provider anyway, giving it a full history of the problem and asking questions concerning the likely duration of Donelien’s symptoms, whether they constituted a disability and, if so, what adjustments might be appropriate. Donelien declined to allow OH to speak to her GP, so it had to go with what it had. What it had, as rehearsed in its final report, was “vague references to hypertension and stress“, inadequate detail of the support which Donelien sought from her employer, and an overwhelming impression that her issues were mostly reactive to her perception that she was overworked and underpaid, “rather than any underlying psychiatric condition or … her high blood pressure“. As a result, concluded OH, there was no reason to believe that Donelien had any statutory disability.

She took this very badly. It was all Liberata’s fault. Although she met again with her employer, she would not expand on her symptoms, refused to do more than three afternoons per week, reserved the right to be late even for them, and reiterated her refusal to ring in before 10am if she were ill because the sheer stress of having to do so would make things worse. Disciplinary proceedings predictably followed and Donelien was dismissed for her repeated failure to work her contracted hours and to comply with the notification procedures for sickness absence.

The Employment Judge found that Donelien was (legally-speaking) disabled. But against the background above, should Liberata be deemed to have known this? Put differently, it knew she was sick but had it done what it could reasonably be expected to have done to find out the true nature of her health problems?

The Court of Appeal thought it had. It had been faced with a substantially uncooperative employee, a varying cast-list of largely unrelated complaints and unspecific advice from Donelien’s GP. It had met with her several times and gained little medical detail but a lot of noise about her unhappiness at work. Most of all, said the Court, the view of OH that Donelien was not disabled was considered and careful based on the information which both Donelien and Liberata had given it. It was also very clear – this was not a case on the margins, according to OH. It had felt that Donelien did not actually have any underlying medical complaint at all, merely a very highly developed sense of personal grievance. That was entirely consistent with Liberata’s own perception (and with the case law). 

The Court of Appeal here was clear that Gallop was a case on its own facts – the employer had relied exclusively on an OH report where that report was worthless because it was unreasoned. “That is very far from saying that an employer may not attach great weight to the informed and reasoned opinion of an OH consultant“, and (though the report should not be followed uncritically), “in general great respect must be shown to the views of an OH doctor“.

© Copyright 2018 Squire Patton Boggs (US) LLP

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About this Author

David Whincup, Employment Attorney, Squires Patton Boggs Law Firm
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Following ten years at a Magic Circle firm, David has been Head of our London Employment practice since 1994. His expertise gained from twenty-five years as a specialist Employment Law practitioner covers a wide variety of employment-related issues, including in particular individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding...

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