Employers have a duty to make reasonable adjustments for employees who are “disabled” within the meaning of section 6(1) of the Equality Act 2010 (EqA 2010). An employee is disabled under section 6(1) if they have a physical or mental impairment which has an adverse effect on their ability to carry out normal day-to-day activities and the effect is substantial and long-term. Before October 2010, similar provisions were contained in the Disability Discrimination Act 1995 (DDA).

An employer’s duty to make reasonable adjustments can arise where a provision, criterion or practice applied by the employer puts a disabled person at a substantial disadvantage in comparison with those who are not disabled (sections 20(3)-(5) EqA 2010, previously section 6(1) DDA). However, that duty is only triggered when the employer has actual or constructive knowledge of an employee’s disability. Constructive knowledge arises where the employer could reasonably be expected to know of the disability (paragraph 20 of Schedule 8 EqA 2010, previously section 4A(3)(b) DDA.

The Court of Appeal found in Gallop v Newport City Council [2013] EWCA Civ 1583 that employers must come to their own conclusion on whether an employee is disabled or not and they should not rely solely on the view given by their occupational health service).

In the case reported below, which was brought under the DDA, the Court of Appeal considered whether an employer had done enough to avoid having constructive knowledge of an employee’s disability.

Ms Donelien was employed by Liberata UK Limited (Liberata) as a court officer for nearly 11 years before being dismissed in October 2009 for her persistent short-term absences and failure to comply with the absence notification procedure. Ms Donelien claimed to suffer from a variety of medical conditions, including hypertension and “work-related stress”. The effect of her absences was exacerbated by her obstructive approach and assumption that she could unilaterally decide to be absent from work without informing Liberata. Ms Donelien consulted her GP regarding her illnesses but refused to let Liberata’s occupational health service contact her GP.

In the last year of her employment, Ms Donelien was absent for a total of 128 days. She gave numerous explanations for her absences, including hypertension and generalised references to stress and anxiety, but also a number of possible viral infections, dizziness, difficulty breathing, reaction to medication, head colds, wrist pain and stomach upsets. On one occasion Ms Donelien gave no reason for her absence.

In May 2009, Liberata referred Ms Donelien to its occupational health service. Liberata posed a number of questions in the referral, including whether there was any medical condition that explained the pattern of Ms Donelien’s absences.

Following a meeting with Ms Donelien, the occupational health service issued a report in July 2009. It stated that Ms Donelien was not disabled but did not respond to all of the questions Liberata had asked. Liberata followed up, receiving a more detailed report from a different doctor at the occupational health service who had not met with Ms Donelien but who had discussed the case with the doctor who issued the first report who had met her. The second report still did not engage sufficiently with the questions posed. Liberata did not follow up further. However, it did make other efforts to investigate whether Ms Donelien was disabled including holding “return to work” meetings with Ms Donelien and considering correspondence from her GP.

Ms Donelien was dismissed for unsatisfactory attendance, failure to comply with Liberata’s absence notification procedures and failure to work her contractual hours. She brought a number of claims in the tribunal including a claim for failure to make reasonable adjustments.

An employment tribunal found that although Ms Donelien was not disabled in July 2009 when the occupational health report was issued, she was disabled by August 2009. The parties agreed that Liberata did not have actual knowledge of Ms Donelien’s disability; the issue in dispute was whether Liberata had constructive knowledge of it.

The tribunal dismissed all Ms Donelien’s claims. In relation to her reasonable adjustments claim, the tribunal found that Liberata had no constructive knowledge of Ms Donelien’s disability during her employment. It was reasonable of Liberata to conclude that Ms Donelien was not disabled as the advice from the occupational health advisor was consistent with Liberata’s own knowledge at the time. Further, Liberata had done all it could reasonably be expected to do to discover any disability.

Ms Donelien appealed to the EAT who upheld the tribunal’s decision that Liberata did not have constructive knowledge of her disability at the relevant time. It considered that Liberata had not relied unquestioningly on the occupational health report and did enough to escape constructive knowledge. Gallop was decided on its own particular facts. For full details of the EAT’s decision

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Ms Donelien appealed to the Court of Appeal.

The Court of Appeal, by a unanimous decision, dismissed the appeal, Lord Justice Underhill giving the leading judgment.

The test was whether the employer could reasonably be expected to know that the employee was disabled at the relevant time, not whether it could have done more.

As Lord Justice Rimer stated in Gallop, for an employer to have constructive knowledge of an employee’s disability, it must have knowledge of all three elements of disability:

It was reasonable for the tribunal to conclude that Liberata did not have constructive knowledge of all three elements in this case. In reaching its decision, the court took account of the following:

The Court of Appeal’s decision provides reassurance to employers that they can continue to rely on the advice of occupational health advisers in determining the issue of disability, so long as appropriate questions are raised and further clarification is sought where necessary. The court made it clear that it did not consider that Rimer LJ’s judgment in Gallop was intended to discount the value of occupational health reports. They remain of value, but they should not just be accepted at face value.

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. The decision could have been different if Liberata had not done so.

The decision also confirms that an employer does not need to take every step possible to establish whether an employee is disabled in order to avoid having constructive knowledge of disability. The test is what an employer could reasonably be expected to know.

Those advising employees should take from the case that it does not pay for an employee to be obstructive if they wish to later rely on the fact that they were disabled at the relevant time. Again, if Ms Donelien had permitted her employer’s occupational health advisers to liaise with her GP, the decision could have been different.