Knowledge of Disability: Had Employer Done Enough?
An employer who took reasonable steps, but not every possible step, to ascertain whether an employee was disabled had done enough to avoid constructive knowledge of the employee’s disability.
An employer is only under a duty to make reasonable adjustments for a disabled employee if it knows that the employee is disabled (actual knowledge) or if it could reasonably be expected to know that the employee is disabled (constructive knowledge).
D was dismissed in October 2009 for persistent short-term absence and failure to comply with the absence notification procedure. In her last year of work she had been absent for 128 days for a variety of reasons.
In May 2009, the employer referred D to occupational heal (“OH”) and asked whether there was any medical condition that explained her pattern of absences. The OH report, issued in July 2009, stated that D was not disabled but did not answer the specific question asked by the employer. The employer followed this up and received a further report which still did not address the question posed. The employer did not follow this up with OH but did make other efforts to investigate whether D was disabled, including holding return to work interviews and correspondence with her GP.
D claimed breach of the duty to make reasonable adjustments. The employment tribunal found that the claimant was disabled by the end of August 2009 at the latest. An issue arose about whether the employer could reasonably be expected to have known of her disability (it was accepted that it did not have actual knowledge). The employment tribunal found that it could not. It had done all it could reasonably be expected to do to discover any disability through its referral to OH, the return to work meetings, its discussions with D and its reviews of GP letters.
D appealed, arguing that the employer had not done enough to escape constructive knowledge of her disability. The EAT rejected the appeal. Although another employer might have followed up further on its questions to OH, that failure was not determinative. It had to be viewed in the context of the other efforts made by the employer to establish disability which in this case were sufficient for it to be deemed not to have constructive knowledge of her disability. The employer could not have been expected to do more – the test is not “counsel of perfection” but, rather, “reasonableness”.
Employers will be comforted by the employment tribunal’s decision in this case and by the EAT’s clarification that the test is not “counsel of perfection” but “reasonableness”. Whilst employers must make reasonable attempts to establish whether an employee is disabled, they do not have to do everything conceivable. This case also acts as a reminder that employers need to be alert to the possibility that there may be an underlying cause for a series of apparently unconnected illnesses and they should consider taking medical advice on this possibility. Failure to do so could mean they have not done enough to escape constructive knowledge of an employee's disability.
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