Donelien v Liberata UK


Good morning and welcome back to your weekly case law update. Last time we looked at age discrimination, sex discrimination and equal pay in changes to employee pensions. This week, to complete the discrimination bingo card you all keep, we have a case on disability discrimination.

This case focuses on knowledge of disability. Section 15(2) of the Equality Act 2010 states that an employer cannot discriminate against a person if the Employer can show they did not know, or could not reasonably have been expected to know, that the person had a disability.

The knowledge can be actual or constructive. An employee might not disclose they are paraplegic but if the employer witnesses the employee using their wheelchair then the knowledge will be constructive.

With that in mind, today’s question is:

If an Employer has an erroneous occupational health report stating that an employee is not disabled, do they have knowledge of the employee’s disability?

Donelien v Liberata UK

The Claimant, Ms Donelien, worked as a Court Officer for Liberta UK, the Respondent. The Respondent is in the business of outsourcing services for organisations. The Claimant prepared Council Tax and Housing Benefit cases for Court on behalf of Southwark Borough Council.

The Claimant reported feeling tired and having low energy levels due to having high blood pressure. This also caused dizziness and breathing difficulties. After a period of sickness due to this the Claimant said she thought the condition was work related due to high workload and low resources

After a further period of absence, the Claimant’s GP recommended a phased return to work to ease the stress which was accepted. After another period of absence, the Respondent referred the matter to an occupational health consultant.  The Claimant refused to allow Occupational Health to contact her GP and was very confrontational in her meetings with the GP.

The Claimant then suffered further stress related illness and was ultimately dismissed. Despite her condition worsening the OH Report wrongly stated the Claimant was not disabled, largely due to being unable to obtain much medical evidence. She bought disability discrimination claims before the ET and the ET held that the Claimant was disabled for her final two months of employment but the Respondent was not to know.

The Claimant appealed and the EAT rejected the appeal. It agreed with the ET and so the Claimant appealed to the Court of Appeal. The CoA dismissed the appeal. It held that despite the false OH report the Respondent had also conducted return to work interviews and had GP notes as well as the Claimant’s unproductive attitude meant the Respondent had done all it could to determine disability and could not reasonably have known the Claimant was disabled.

The takeaway point:

If the OH report isn’t the only factor that the decision is based on, no. If the Respondent has taken steps to determine disability and all of these have led to them forming an opinion that the employee isn’t disabled then the erroneous report isn’t the only factor and the Respondent could not have reasonably known.

Feedback of the week:

Last week we did our first feedback of the week section. This week’s feedback is for a client who saw Liam for a settlement agreement.

“I saught PJH laws (sic) services at the end of last year regarding an extremely stressful work matter. I was initially very worried that it would only add more stress, but that was quickly alleviated by Liam, who dealt with the matter very swiftly and successfully. Any preconceptions I had about solicitors are now gone, thanks to Liam’s extremely personal approach. His human approach combined with exceptional professionalism made the whole ordeal manageable and allowed me to move forward with my career. Huge thanks again to Liam, he’s a top bloke and I’m extremely grateful.”