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Avoiding disability discrimination - reassurance for employers

When investigating whether an employee is disabled, how far do you need to go? The Employment Appeal Tribunal (EAT) has held that an employer that took "reasonable steps", rather than "every step", did enough to investigate whether or not their employee was disabled.

The facts

The employee had been employed as a court officer for 11 years before her dismissal in October 2009 for her persistent short term absences and failure to comply with the employer's absence notification procedure. In her last year of employment the employee was absent from work for a total of 128 days. She gave numerous reasons for her absences including generalised references to stress and anxiety, viral infections, dizziness, difficulty breathing, stomach upsets and reactions to medication. 

The employer requested an occupational health report, which was issued in July 2009. While the report stated that the employee was not disabled, it did not engage sufficiently with the questions posed by the employer. Although the employer did not follow up on this report, it did make other efforts to investigate whether the employee was disabled. These included holding "return to work" meetings and reviewing correspondence prepared by her GP. 

Following her dismissal the employee brought a number of claims, including a claim that the employer had failed to make reasonable adjustments to cater for her disability. While the employee was not disabled in July 2009 when the occupational health report was issued, the Employment Judge found that the substantial effect of the impairments listed above resulted in her being disabled by the end of August 2009.

The EAT's decision

The EAT upheld the tribunal's decision that the employer had done all it could reasonably be expected to do to discover any disability. The EAT made it clear that, although another employer might have followed up the questions it had originally posed to the occupational health service, failure to do so was not conclusive and should be viewed in the context of other efforts made by the employer. The EAT held that the employer had taken sufficient steps to investigate whether or not the employee was disabled.

The EAT also held that this was a case where it was reasonable for the employer to conclude that the employee was not disabled. Many of the employee's absences were not due to the impairments that gave rise to the employee's disability. They were attributed to colds, flu and generalised references to stress and anxiety which would not ordinarily lead an employer to conclude that an employee is disabled.

Comment

This case is reassuring for employers, as it confirms that an employer does not need to take every step possible to ensure that it cannot be said that it ought to have known about an employee's disability. It is the employer's actions taken as a whole that matter.

This case also shows that while frequent short term absences can be frustrating for employers, it is important to bear in mind the possibility that the underlying cause of an employee's absences could be a disability. An employee can therefore progress from not being disabled to being disabled in a short period of time, as was the case here. 

For more on the decision, click here.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at April 2015. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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