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Court of Appeal upholds decision that employer did not have constructive knowledge of disability


The Court of Appeal has upheld the Employment Appeal Tribunal’s decision that an employer did not have constructive knowledge of an employee’s disability as it had taken reasonable steps to ascertain whether she was disabled.

In this case, the employer had not simply rubber-stamped the opinion of its occupational health advisers that the employee was not disabled. It had gone back to the occupational health advisers for further clarification, had considered correspondence from the employee’s GP and had held return to work meetings with the employee, before reaching its conclusion. The test was what was reasonable for the employer to know, not whether there was more it could have done. (Donelien v Liberata UK Ltd [2018] EWCA Civ 129.)

Head of Lodders’ employment law team Nick Rowe comments:

“It is, in my view, very important for employees and employers to be reminded of their obligations in respect of disability; both in terms of the disclosure of any potential disability by the employee to the employer and what an employer should do, in terms of how it deals with a situation where there may (or may not) be a disability under the Equality Act. An employer should always take reasonable steps to fully explore (and understand) such a situation and make reasonable adjustments, in the event that there is a disability, but it can only do so if it is aware that there is a potential disability in the first place.”

To find out more about this story or for more information on Lodders’ employment law services, please contact Nick Rowe on 01242 229096 or via email.

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