Knowledge of disability

21 March 2018

If an employee is disabled under the Equality Act 2010, as their employer you must make reasonable adjustments to elements of their job which put them at a substantial disadvantage, compared to non-disabled employees. This is known as the ‘duty to make reasonable adjustments.’

There is a defence to this duty if you did not know and could not reasonably have been expected to know, that the employee was disabled. You are allowed to rely on specialist advice from occupational health. However, you do have to come to your own decision on disability and shouldn’t just rubber-stamp an occupational health assessment which doesn’t have a lot of detail or reasoning.

The Court of Appeal decided that an employer, Liberata UK, did not have knowledge of its employee’s disability and so did not breach its duty to make reasonable adjustments. Ms Donelien had taken substantial periods of sick leave for various different medical reasons. She was eventually dismissed. The employer had relied on occupational health advice which wrongly stated Ms Donelien was not disabled. However, Liberata had also held return to work meetings with Ms Donelien and had considered letters from her GP before coming to its decision. None of this evidence clearly pointed to her being disabled. The Court felt that taking all of that evidence into account it was not reasonable to say that Liberata should have known that Ms Donelien was disabled.

You should always seek a full occupational health opinion and look at all the surrounding evidence before disregarding reasonable adjustments for someone with a medical condition. You should take all reasonable steps to find out the nature of an employee’s illness and whether it may amount to a disability.

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