To know or not to know? When should an employer know that an employee is disabled?

Anna Moyle

What should an employer do with advice received from occupational health?

An employer cannot rely on not knowing about an employee’s disability to avoid making reasonable adjustments, or to defend a discrimination claim, if it should have known that the employee was disabled. Where an employee does not want to divulge they are disabled, or is not even aware that they are, this can cause particular difficulties. A responsible employer will therefore obtain medical evidence (often from the employer’s OH doctor) if it has concerns about an employee whose behaviour could be because of underlying health problems. But what the employer should then do with the information in an OH report is not always so obvious.

An employer must form its own opinion as to whether an employee is disabled, based on an assessment of the employee’s condition and the implications for that employee. Providing relevant information to, and asking appropriate questions of, the OH doctor in order to obtain a focused report is only one step (but an important one) to help the employer form that opinion. Tribunals are, however, likely to be sympathetic towards employers who reach (reasonable) conclusions based only on partial information, where an employee has refused to co-operate with obtaining medical evidence.

Two recent cases provide some useful guidance. When read together, they emphasise that employers cannot simply delegate to OH the task of deciding whether or not an employee is disabled and if there are any reasonable adjustments that should be made. These are the cases:

Cox v Essex County Fire and Rescue Service

Mr Cox was dismissed following several incidents of aggressive behaviour at work. By the time his subsequent claim for disability discrimination had reached the Employment Tribunal the Fire Service had accepted that he was disabled by reason of bipolar disorder. However, the EAT upheld the finding of the Tribunal, that the Fire Service did not know, and could not reasonably have been expected to know, at the time of the dismissal that Mr Cox was disabled.

Prior to his dismissal Mr Cox had been seen by OH twice, but there was no firm diagnosis of his condition. He had stated in a pre-employment medical questionnaire that he did suffer from mild depression, but indicated it did not affect his ability to carry out day to day activities. He subsequently told the Fire Service that he was suffering from severe depression, which prompted the first referral to OH, which advised that he was unlikely to be disabled for the purposes of the relevant legislation. Prior to his second and last referral to OH and following another incident of aggressive behaviour, Mr Cox informed his employer that he had been suffering from bipolar disorder for a number of months. But OH advised that such a diagnosis could not be confirmed without the benefit of further reports from Mr Cox’s GP and specialist doctor.

It was at this point (following advice from his lawyer who was advising him in respect of a potential personal injury claim) that Mr Cox withdrew his consent for any such medical reports to be provided. He was subsequently dismissed.

Both the Tribunal and the EAT were influenced by Mr Cox’s refusal to cooperate with his employer’s attempts to obtain medical evidence. They found that the Fire Service had asked all the right questions and done all that could be reasonably expected of it to try and find out whether or not Mr Cox had a disability. He therefore failed in his claim.

Gallop v Newport City Council

Mr Gallop had complained of stress (including raising a grievance), taken periods of sickness absence and been seen several times by OH before he was dismissed by Newport City Council. OH had advised that they did not consider him to be disabled.

Both the Tribunal and the EAT sided with the employer which, they said, was entitled to reply on the OH report. “Wrong”, said the Court of Appeal which held that an employer must reach its own factual judgment and not simply rely on a report from OH. It held that the question for a Tribunal to ask is whether at the time of dismissal the employer had actual or constructive knowledge of the facts constituting an employee’s disability. It is not, therefore, appropriate simply to look unquestioningly at any opinion expressed by OH.

An influencing factor on the Court of Appeal decision was the quality of the OH report provided to the Council. The report simply stated that they did not consider Mr Gallop to be disabled. No attempt was made to explain the reasoning behind that opinion by referring to the usual legal test, in other words did Mr Gallop’s condition amount to “a physical or mental impairment that had a substantial and long term adverse effect on his ability to carry out normal day-to-day activities“. The Court of Appeal was so unimpressed by the OH report that it described it as “worthless“.

Practical steps for Employers

  1. Continue to obtain medical evidence at an early stage whenever dealing with an employee whose work may be affected by a medical condition. It is usually best practice to get a report from OH even if they in turn may require additional evidence from the employee’s own doctor(s)
  2. Give thought to the information provided to OH and the questions asked of them as this may affect the quality, and use, of any subsequent OH report. Has sufficient detail been provided so that OH can understand the nature of both the employee’s role and the impact of their condition? Ask OH to confirm whether they need anymore information.
  3. Ask questions of OH that will allow you, as the employer, to assess whether the employee is likely to fulfill the legal definition of disabled.
  4. Ask OH for their opinion as to whether or not the employee is disabled and ask them to give their answer by reference to the various criteria of the legal definition.
  5. If OH consider the employee to be disabled you will need to assume this is indeed the case unless there are very good reasons for saying otherwise. If, however, OH do not think the employee is disabled, do not accept this finding without first carrying out your own assessment of the facts (and making a note of this).

  6. Always explain to an employee why you want to obtain a medical report and the possible implications if they do not co-operate. If an employee still refuses to cooperate and hampers attempts to obtain appropriate medical evidence, make sure this is clearly documented.

This is a timely reminder that claims are brought against employers not against their advisors; and it is almost certain that OH will have terms and conditions that avoid liability by requiring an employer not to rely on its report without question. Remember: it is your decision.