Ian Machray explores whether an employer can safely rely on an OH report to determine whether an employee is disabled.
In a recent case, the Court of Appeal assessed whether an employer should be treated as knowing that an employee is disabled even though medical evidence has incorrectly stated the employee is not disabled.
The case concerned Ms Donelien, who had for 10 years taken substantial sick leave, giving different explanations for her absence including stress, viral infections, high blood pressure and breathing difficulties. She was referred to occupational health who advised the employer that she did not suffer from a disability and that her problems were “managerial not medical”.
Further periods of absence followed, and the employer instigated disciplinary proceedings. She was eventually dismissed for not working her contractual hours and failing to notify the employer about her sickness absence. She brought a claim alleging she was disabled and that the employer had failed to make reasonable adjustments to avoid her being at a substantial disadvantage.
Although in a pre-hearing review Ms Donelien was considered to be disabled under the Equality Act 2010, the tribunal held that the employer, at the relevant time, did not know, and could not reasonably have been expected to know, that she was disabled. The Court of Appeal agreed with this verdict, as the employer had taken sufficient steps, in addition to the occupational health report, to conclude that the employee was not disabled. The employer had, in particular, considered its own meetings with Ms Donelien, correspondence it had received from her GP and had made further enquiries of occupational health.
Employers should note that it is not enough to simply ‘rubber stamp’ a medical adviser’s opinion. They must form their own view on an illness and whether or not an employee should be classified as disabled under the Equality Act. Employers should consider all evidence, including interviews with the employee and any letters from the employee’s GP, before reaching a conclusion.
The case illustrates that an employer should always follow up with its occupational health advisers if their initial report does not address all of the issues raised by the employer.