Last week the Court of Appeal upheld the earlier decision in Donelien v Liberata UK Limited; this related to the assertion by an employer that they did not have constructive knowledge of an employee’s disability and therefore had no duty to make reasonable adjustments.

Constructive knowledge in this case relates to, given their understanding of the employee, whether the employer could reasonably be expected to be aware (or should have made themselves aware) that the employee has a disability. Reasonable adjustments relate to modification to working practices or additional support that should be given to a disabled employee to remove the substantial disadvantage they are subjected to as a result of their impairments and their ability to engage in the workplace. The key thing is that the disabled employee must have a disability that complies with the legal definition.

In Gallop v Newport City Council (an earlier case looking at the same issue) the employer had obtained a medical report and simply accepted its assertion on face value that the employee was not disabled; this was seen not to be sufficient. In Donelien v Liberata UK Limited the employer had gone further. As in Gallop they had obtained medical evidence (albeit there were some concerns over the content of the resultant report) but they also relied on other evidence. It seems that there was a view that the employer had been hampered by the fact that they had been presented with a with a good deal of ‘not very clear’ information; it is also reported that Ms Donelien had presented with an  uncooperative and argumentative stance. In any event, the Court of Appeal concluded that Liberata UK Limited could not have been reasonably expected to do more to investigate the existence of a statutory disability hence their position that Ms Donelien did not have a disability was not unreasonable.

Key Message

In our opinion this case provides useful lessons for both the workplace and education:

  1. If a person believes they have a disability it is far better for them to disclose this to an employer and work with them co-operatively in order to determine what reasonable adjustments they need.
  2. Employers must not be passive in relation to disability; they need to work sensitively and be proactive about finding out whether or not an employee is disabled.
  3. Schools and post-16 institutions, we would argue, are expected to do more to determine whether their pupils and students have a disability than employers as they should see themselves as part of a support system for children and young persons.

Full details of the case can be found HERE

Talem Law

10th February 2018

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