Court of Appeal rules that employer did not have constructive knowledge of employee’s disability

The duty to make reasonable adjustments for disabled employees only arises where an employer has actual or constructive knowledge of the disability. Constructive knowledge arises where the employer could reasonably be expected to know of the disability. In Donelien v Liberata UK Ltd, the Court of Appeal has upheld the Employment Appeal Tribunal’s (EAT) decision that an employer did not have constructive knowledge of an employee’s disability because it had taken reasonable steps to ascertain whether she was disabled.

Ms Donelien was dismissed by Liberata UK Ltd in October 2009 due to persistent short-term absences and failure to comply with absence notification procedures. In her last year of employment, she was absent 20 times for various reasons including hypertension, stress, viral infections, wrist pain and stomach upsets. Liberata referred Ms Donelien to its occupational health service which issued a report stating that she was not disabled. Since this report had not answered all the questions, a second follow-up report was requested. This also failed to answer Liberata’s questions adequately and further efforts were then made to investigate Ms Donelien’s health conditions, including meetings with her and considering correspondence from her GP. However, she was uncooperative and refused to allow occupational health advisers to contact her GP. Following disciplinary proceedings, Ms Donelien was dismissed. She subsequently brought various claims including a disability discrimination claim for failure to make reasonable adjustments.

The Employment Tribunal held that although Ms Donelien was not disabled in July 2009 when the occupational health report was issued, she was disabled by August 2009. It was agreed that Liberata did not have actual knowledge of her disability. The issue in dispute was whether Liberata had constructive knowledge of it.

The Employment Tribunal, and the EAT, held that Liberata had done all it could reasonably be expected to do to establish whether Ms Donelien was disabled and concluded that it had no constructive knowledge of her disability. The Court of Appeal also dismissed Ms Donelien’s claim, confirming that the test was whether the employer could reasonably be expected to know that the employee was disabled at the relevant time, not whether it could have done more. Rather than simply rubber-stamping the opinion of its occupational health advisers that Ms Donelien was not disabled, Liberata had reached its own reasoned conclusions by following up the occupational health report, holding return to work meetings and considering letters from her GP.

This decision confirms that constructive knowledge will depend on what an employer could reasonably be expected to know, not whether it has taken every step possible to establish whether an employee is disabled. It is vital to ensure that appropriate questions are asked in any referral to occupational health services, and that reports are followed up if the information provided is unclear or inadequate. The employer in this case was able to show that it had taken a critical approach to the occupational health reports and had also sought information from the employee and her GP. It was also relevant that the employer had persevered even though the employee was uncooperative in refusing to allow the employer’s occupational health advisers to contact her GP.