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Knowledge is everything: disability discrimination in the workplace

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Case update: Donelien v Liberata (UKEAT/0297/14/JOJ)

In order to make adjustments for a disabled employee, an employer must have known about the employee’s disability. However, in practice this can be far from straightforward to establish, and employers can be guilty of discriminating against a disabled employee if they ought reasonably to have known that they were disabled.

In this matter the Claimant, Ms Donelian, was a court officer who claimed her employer had failed to make reasonable adjustments for her disability when she was dismissed after almost 11 years of employment for poor and erratic attendance and a failure to comply with absence reporting procedures.

The Tribunal was satisfied that Ms Donelian’s stress-related condition did satisfy the requirements of a disability under the Equality Act 2010. Namely that it was likely to last for a year or more, and significantly and adversely affected her day-to-day activities. However, the key question in the case was whether the Respondent knew or ought reasonably to have known, that the Claimant was disabled given her deteriorating attendance, and make adjustments for her accordingly.

In her final year of employment, Ms Donelian was absent from work on 20 separate occasions. The Tribunal found that her attendance was “erratic and occasional." She had provided a number of reasons for her absences, including asthma, depression and dizzy spells. Her employer had referred her for an occupational health assessment but this found that she was not disabled. Importantly, her employer also sought the opinion of the Claimant’s GP and had taken other steps such as conducting return to work meetings with her. The information the employer had was therefore vast, and the Tribunal deemed it was not enough to enable the employer to conclude that the Claimant was disabled at the relevant time.

The Claimant appealed this decision and argued that the Respondent should not have relied upon an occupational health report when deciding if she was disabled or not.

The appeal was rejected by the EAT who concluded that the employer had a wealth of other information available to them, such as discussions with the employee and communications with her GP, to allow them to conclude that she was not disabled. The employer had therefore taken reasonable steps.

This decision reinforces the opinion that employers cannot simply rely on an occupational health assessment to conclude if an employee is disabled or not. Employers must instead make an informed decision based on all of the facts available to them. In this matter, the steps taken by the employer to accumulate a range of information was crucial to defending their position. This case flags the complexities of disability discrimination in the workplace and the importance of seeking specialist legal advice.

If you have had an issue similar to this and would like some advice please contact our discrimination team on 0175 321 6399.

By Natalie Parkinson, employment and discrimination advisor in the dispute resolution team.

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