Guidance To Employers Determining If An Employee Is Disabled

Guidance To Employers Determining If An Employee Is Disabled

In this case, an employer dismissed an employee who had been absent for 128 days.  The reasons for the absence were given as various, but included Work Related Stress and blood pressure. The employee brought claims, relying on being disabled and included a claim for failure to make reasonable adjustments.

The question then was whether the employer knew she had a disability.

The Court of Appeal considered an earlier decision from 2013 where an employer had an occupational health report saying that an employee was not disabled, despite clear evidence that made it apparent to all that the employee was disabled. (see Gallop v Newport City Council 2013). In that case the court ruled that an employer cannot simply hide behind occupational health, and it must make its own enquiries. The question is not just DID they know, but SHOULD they have known?

Applying that to this case, the employer had asked for two occupational health reports and both had failed to answer their specific questions. Therefore, in addition, the employer had sought the view of the employees own GP.

The result was that the employer did not know about the disability, because they had taken all reasonable steps to find out, and still it did not suggest a disability, even though the court ruled that at the time of the dismissal, the employee was actually disabled. The employer in effect escaped liability because it could not have known, having made all reasonable enquiries.

The advice to employers therefore is don’t just accept poor, or incomplete occupational health assessments, especially if they fly in the face of what you see with your own eyes. Make additional enquiries if necessary. If an employee refuses permission to make further enquiries, we know from other case law that an employer can make a decision on the information available.

The case itself can be read here.

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