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Disability discrimination and relying on occupational health reports

Fundamentally, employers will always – to some extent at least – need to rely upon the knowledge of others when deciding how to act in relation to employees with disabilities. What adjustments are reasonable and the extent of someone’s condition is often something that can only truly be understood by a medical expert or occupational health therapist.

How far can employers go in reliance on occupational health reports?

But how far can they go in reliance on an occupational health report and to what extent do they have an obligation to undertake their own investigations? The recent EAT case of Kelly v Royal Mail Group Ltd [UKEAT/0262/18/RN] raises some interesting issues relating to dismissal for attendance and disability discrimination arising from merely rubber-stamping occupational health reports.

The facts of the case

The claimant had worked as a postman for the respondent for 21 years until his dismissal in August 2017. He had a history of poor attendance, which he had put down to bad luck and family issues.

The respondent’s attendance policy had three stages: AR1, AR2 & AR3:

  • AR1 was triggered in the event of four absences or 14 days of sickness in any 12-month period;
  • AR2 was triggered if there were a further two absences or a single absence of 10 days or more within a six-month period; and
  • AR3 was triggered if, over the subsequent six months, the employee incurred a further two absences or a single absence of 10 days or more.

AR1 and AR2 equated to a warning and final written warning, while AR3 involved consideration (though not necessarily imposition) of dismissal.

The claimant’s absence record meant that he had repeatedly triggered the AR procedure before. He had also taken so much ‘special leave’ that he had been warned that no other absences could be treated as such.

Maintaining satisfactory attendance

From January 2016, the claimant had further absences relating to injuries caused by an assault, insomnia and vomiting. He was then absent between June and August 2016 for carpal tunnel syndrome surgery in the right wrist, and then for another period between December 2016 and February 2017. The respondent made the decision to dismiss, based on not having confidence in the claimant’s maintaining satisfactory attendance in the future.

As a result, the claimant brought claims for unfair dismissal and disability related discrimination.

At the Employment Tribunal, the claimant was unsuccessful and so appealed, based on 12 separate grounds. The most relevant for consideration were that:

  • The tribunal erred in taking into account absences that predated those that triggered the most recent capability proceedings;
  • It erred in failing to discount absences for corrective surgery;
  • The tribunal applied the wrong approach in law for the knowledge of disability.

No knowledge of disability

The appeal was dismissed. It was found that:

  • It is unlikely that an employer that is following its own absence policy will be considered unfair and the policy expressly permitted earlier absences to be taken into account. This applied to all absences, irrespective of fault or blame;
  • The respondent was entitled to look at the overall pattern of absence to determine whether there was a likelihood of satisfactory attendance in the future;
  • The respondent had not simply rubber-stamped the occupational health report but had, on the face of it, given independent consideration to the question of disability. Moreover, the reports themselves contained more than a bare assertion that the claimant was not disabled;
  • There was no constructive knowledge of disability.

The respondent did not merely rubber-stamp the occupational health report but did go further with consideration being given to the underlying condition. This was a key consideration in this instance. Although the report had made findings that the claimant was not disabled, the respondent went beyond this and considered the condition further at a later stage. Also, given the representations of the claimant and the findings of the occupational health report, the respondent had never developed the required knowledge of disability for a discrimination claim to arise.

The key takeaway from this matter is that, generally, provided an employer follows a fair overall procedure and complies with its policies, a dismissal is likely to be fair. They should, however, be wary about simply accepting an occupational health report’s findings at face value and rubber-stamping its conclusions. Various factors could become relevant, such as time passed since the report was prepared or additional information becoming available at a later time. However, as long as an occupational health report is considered in full by the respondent, it is unlikely that the tribunal will find fault in their process.

For more information on this topic or any other employment law-related issues, please contact our employment law team by emailing Employment Partner David Leslie at [email protected] or calling 0113 368 7804.

Posted on Oct 22nd, 2019 by Lyons Davidson

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