In this blog Nathaniel Caiden considers yesterday’s judgment by the Court of Appeal that concerned constructive knowledge of disability - Donelien v Liberata UK Ltd  EWCA Civ 129 (in which Tom Brown appeared throughout for the successful party).
HR professionals, employers, lawyers and courts all have to deal with the sometimes fraught question of disability. Occasionally one is also concerned with someone who is less forthcoming and there will equally be an issue of whether one has ‘constructive knowledge’. The Court of Appeal’s decision in Donelien v Liberata UK Ltd  EWCA Civ 129 underscores the fact that these are of course fact sensitive decision. However, there are legal themes and resultant practical advice that stems from this judgment.
First, it is worth considering the facts in the briefest outline before dealing with (i) legal principles and (ii) practical points that flow from this judgment.
The Claimant was found by an Employment Tribunal to be actually disabled only from 20 August 2009. Before this date, and in the latter half of 2008 onwards, she arrived to work late, and left early. She complained of a variety of problems (high blood pressure, dizziness, and breathing problems). She said her problems were work related.
Following a period of sick leave, she provided at the beginning of 2009, a GP note that suggested a phased return and her employer agreed. A decision was made to refer her to Occupational Health (“OH”), but the Claimant was uncooperative. There was another short period of absence, with a GP letter, but once again, the Claimant was found to be uncooperative (she refused to confirm the accuracy of the absence records).
The OH route was pursued, but the Claimant refused to allow the OH to contact her GP. The OH’s advice was that she was not disabled. When the Claimant was later off sick again, a return to work meeting was held which was ‘unproductive’ and disciplinary meetings were arranged. The Claimant failed to attend and provided further GP letters. The OH were provided with this (which was after the Employment Tribunal found she was in law disabled) but did not view this as altering the earlier advice.
So the issue for the Employment Tribunal, and later the Court of Appeal, was whether the employer could “plead ignorance based on their OH advice coupled with their own knowledge of the reasons for the Claimant’s absences” (Donelien at ).
The legal principles
The case concerned the now repealed Disability Discrimination Act (“DDA”), the duty to make reasonable adjustments and in particular, with the question of constructive knowledge under s.4A(3)(b) DDA which states that “Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know–…that [the disabled person concerned] has a disability and is likely to be affected in the way mentioned in subsection (1).”
Whilst there is no express mention of the reasoning being directly applicable to the Equality Act 2010, it appears that this case would be applicable to the Equality Act 2010 (“EqA”) because it uses the same material phrase “did not know, and could not reasonably have been expected to know, that B had the disability” (s.15(2) EqA, and para 20(1)(b) of Sch.8 EqA).
It should be noted that constructive knowledge, and so it is asserted this decision, is relevant in the following claims of disability discrimination under the EqA: (i) arising from discrimination, (ii) failure to make reasonable adjustments (but not for indirect discrimination).
In terms of the relevant legal principles of constructive knowledge the following points from the decision are notable:
- The ‘constructive knowledge’ required is that one reasonably ought to know of all matters required to meet the definition of disability, now found in s.6 EqA (that is (a) the impairment, (b) that has a substantial and long-term adverse effect on the claimant's ability to carry out normal day-to-day activities): Donelien at .
- As the test is what the employer could “reasonably” have been expected to know, the earlier GP letters before the date of disability in law (as found by the Employment Tribunal), could not cause an employer to know at this earlier date that the employee was disabled (although of course that is the background matrix to events on or after that date which may lead to constructive knowledge of disability): Donelien at -.
- In terms of the decision in Gallop v Newport City Council  EWCA Civ 1583,  IRLR 211 this case does not mean that the employer cannot rely upon the weight of its OH advice. It cannot just rubber stamp the advice and rely on it exclusively. However, if the advice is reasoned (which it was not in Gallop) and it is not simply followed uncritically it may mean that the employer lacks the relevant constructive knowledge. See Donelien at -.
- Making a change to someone’s working conditions does not in and of itself necessarily imply knowledge of a disability: Donelien at .
Some practical pointers
Now onto the following practical points that seem to flow from this decision:
- Employers/HR professionals should ensure that questions sent to OH are appropriately framed to allow a ‘reasoned’ opinion on disability. It may well mean that if an employer gets back an opinion saying just a ‘yes’ or ‘no’ in term so disability it should revert back to OH with more questions to elicit the relevant reasoning. This will help evidence also that the employer was making a decision on disability itself.
- Employees and their advisers should provide their own reasoned medical evidence/opinion. Often one sees just blanket letters reciting symptoms and history, if one can it is well worth seeing if the relevant GP / medical evidence / report during employment properly addresses the disability issue.
- Employees and their advisers should ensure that they are not ‘obstructive’ and are more open/cooperative. Of course there is can be concerns as to perceptions/stigma attached to disability, but the case is a salutary lesson in an employee making it much more difficult for herself to later assert disability (refusal to provide information, refusal to allow OH to contact the GP).
9 February 2018