Management of employees critical to discrimination claim success

Many employers are aware of the need to manage employees with known disabilities in an appropriate way to support that employee. It’s an area all employers worry about because they know the cost of getting it wrong can be high, with compensation uncapped in the way it would be for an unfair dismissal case.

That said, it is important that employers feel confident to manage situations and not blindly tolerate behavior for which there is no medical or other evidence. Sometimes an employee will tell you about a condition and you can write to their GP (with permission) for verification but often it is the employer that has to chase the diagnosis. When an employer knows about an employee’s disability, various legal obligations under the Equality Act 2010 are triggered, such as the duty to make reasonable adjustments.

The law is unhelpful in that it is very clear about the penalties for employers that discriminate – either deliberately or unknowingly but not at all clear about what actions a reasonable employer might take to establish the situation. Or what behavior is unreasonable on the part of the employee.

A recent case Donelien v Liberata was about a court officer who had been employed over 10 years when she was dismissed for poor and erratic attendance and failure to comply with company absence procedures. She then claimed her employer had failed to make reasonable adjustments for her disability, a stress related illness.

What the Tribunal decided

The Employment Tribunal was satisfied Donelien had shown symptoms of a stress-related illness two months prior to her dismissal, which was likely to last for a year or more and which significantly affected her day-to-day living adversely (in other words, she had a potential disability).

The Employment Tribunal also accepted she had a “poor sickness record”, as she believed she was entitled to manage her 

stress levels as she saw fit and only attend work when she felt like it.

The Employment Tribunal recognised there was conflicting evidence in terms of the reasons for Donelien’s absences, as these had been attributed to various and seemingly unrelated illnesses. This was further complicated by her own conduct in deciding when she was willing to work, clouding any assessment of her genuine capability to do so. When, finally, the employer referred her for an occupational health assessment, the advice it received was that she was not disabled. This information, coupled with the employer’s own impressions, and letters from Donelien’s GP, led the Employment Tribunal to conclude her condition was not identifiable as a disability. 

While the Employment Tribunal criticised the adequacy of the Occupational Health Advisor’s investigation, it decided the employer could not reasonably have been expected to do more to find out the true nature of its employee’s health problems, or to have known she was disabled.

Employee Appeal Rejected

Donelien then appealed, arguing that it was unreasonable for the employer to rely on the Occupational Health advice in the light of the tribunal’s criticism of it.

The Employment Appeal Tribunal (EAT) rejected her appeal, concluding there was plenty of other evidence available to the employer from which to conclude she was not disabled, including ‘return to work’ meetings, discussions with the employee, and communications with her GP. This evidence, taken together, proved critical to the employer’s success in the case.

Amelore comment

Since the case of Gallop v Newport City Council last year, it has been clear that employers cannot blindly accept occupational health advisors’ conclusions when it comes to disability but must draw their own conclusions, based on their broader knowledge of the employee and the events involved.

In this case, the Employment Tribunal was satisfied the employer could show its decisions only relied in part on occupational health advice and that, despite the Employment Tribunal’s subsequent finding of disability, at the time of when it took those decisions, it could not necessarily have known its employee was disabled.

The nature of the employee’s illness was also significant. As the EAT pointed out, ‘stress’ is not an illness in its own right but a label commonly attached to many symptoms of anxiety and depression. For that reason, diagnosis of any underlying illness is often difficult. The EAT acknowledged this was not an uncommon predicament for employers, when faced with absences caused by a number of complaints.

Managing Employee Relations issues like this can be complicated but it’s an areas that the earlier you intervene, the better the outcome. And remember, records, records, records.