An interesting case, Donelien v Liberata UK, recently highlighted the difficulty around identifying disability. In this case the Claimant was absent on 20 separate occasions covering a total of 128 days in the final year of her employment. This was due to a variety of reasons including hypertension, stress and anxiety.

The employer had instructed an Occupational Health report to be completed and this report stated that the Claimant was not disabled as prescribed by the Equality Act 2010. The Claimant refused to cooperate with further enquiries and would not let the employer contact her GP. Therefore, she was dismissed for failing to comply with notification procedure and persistent absences.

The claimant then bought a case against the employer for failing to make reasonable adjustments.

The tribunal found that whilst she was disabled in the final two months of employment, the employer was not aware of this and could not reasonably have been expected to know and this is the key point. Did the employer make their own decision and on what information did they make it? They made the decision based on the OH report.

The Court of Appeal confirmed that there is a duty on employers to consider all information, not just the OH report.

In this case the employer did make enquiries after the report, consulted GP letters and reviewed Return to Work meetings before making the decision. The Court of Appeal therefore ruled that they “did all they could reasonably be expected to have done to find out about the nature of the health problem that the Claimant was experiencing”. The fact that the employee also refused access to her GP as part of the report was also pointed out.

So, the advice for employers is to consider all information available to you when dealing with a case of absence and possible dismissal. Document everything and make sure you take HR advice for any area you are unsure of.

If you need any further help with Occupational Health support, return to work meetings or dismissals please speak to the SAM team.


Case links:

Leave a Reply