Knowledge of Disability is Required to be a Discriminator

18 August 2015

Maxine Orr, Partner and Head of Employment Department at Worthingtons, discusses issues of absence management and disability in the workplace.

Under the Disability Discrimination Act 1995 (as amended), an employer has a duty to make reasonable adjustments for employees who are disabled as defined by the legislation and who are at a substantial disadvantage compared with employees who are not disabled. However this duty does not arise unless the employer has knowledge of the disability or could be reasonably expected to know that the employee is disabled.

Ms Donelien was employed by Liberata UK Ltd as a court officer for approximately 11 years when she was dismissed in October 2009 due to her poor attendance record; failure to comply with the absence notification procedures and her failure to work her contracted hours of work. In her final year of employment she was absent on 20 different occasions for a total of 128 days and the reasons given for these absences included stress, high blood pressure, viral infections, dizziness, difficulty breathing, an adverse reaction to medication, a cold, an upset stomach and wrist pain. On some occasions she did not provide any reasons. Furthermore there were times when she did not always advise her employer that she was going to be absent.

When she had been sent to Occupational Health, the reports had referred to her blood pressure and to “underlying employment issues” but Occupational Health did not answer the question raised by Liberata UK Ltd as to whether Ms Donelien was disabled. Indeed the Occupational Health doctor stated that he had no reason to believe that she was disabled and her own GP stated that her health issues did not amount to a disability.

Ms Donelien issued proceedings in the Employment Tribunal claiming, amongst other claims, a failure on the part of the employer to make reasonable adjustments. The Tribunal judge found that she was disabled under the Act but stated that the employer could not reasonably have been expected to know that she was disabled. The judge specifically stated that the employer “has done all it could reasonably be expected to have done to find out the true nature of her health problems by holding “return to work” meetings and by referring her to OH and by reviewing the letters she had asked her GP to write”. The Tribunal concluded that many of the absences were not because of the impairments which gave rise to her disability but because of flu and colds and very generalised references to stress and anxiety – such absences would not normally lead an employer to think that an employee was disabled. The Tribunal also commented on the fact that the employer had not been helped by Ms Donelien’s confrontational attitude, her lack of co-operation and her refusal to allow Occupational Health to contact her GP. She appealed her case, but the Employment Appeal Tribunal dismissed her appeal.

Employers should always take professional legal advice when dealing with issues of absence management and disability in the workplace as each case needs to be addressed on its own facts. This case demonstrates that there are particular difficulties when trying to manage staff who are absent over a prolonged period.

Maxine Orr is a Partner in Worthingtons Commercial Solicitors, specialising in Employment Law.

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