When Do Employers Have Constructive Knowledge of Disability?

In Donelien v Liberata UK Ltd [2018] EWCA Civ 129, the Court of Appeal considered whether an employer had constructive knowledge of an employee’s disability.

Ms Donelien was employed by Liberata UK Limited (Liberata) as a court officer. In her last year of employment, she was absent on 20 separate occasions amounting to 128 days. She gave numerous explanations including stress, anxiety and hypertension. Liberata requested letters from her doctor, held return-to-work meetings and referred her to occupational health. The occupational health report concluded that Ms Donelian was not disabled, but did not sufficiently answer Liberata’s questions. Follow-up enquiries were then made by Liberata but the second occupational health report also failed to engage with the questions posed. Liberata did not follow up in relation to the second report, but it held further meetings with Ms Donelien and corresponded with her doctor. Ms Donelien was eventually dismissed due to her absences.

Ms Donelien brought a claim of disability discrimination. While the Court of Appeal accepted evidence that Ms Donelien had been disabled before her dismissal, it found that at the material time, Liberata did not know and could not reasonably have been expected to know that she was disabled. As such, her discrimination claim was rejected. Liberata had taken reasonable steps to ascertain whether or not Ms Donelien was disabled; it had not simply “rubber stamped” the occupational health report stating that she was not disabled. The Court of Appeal confirmed that the relevant test was whether an employer could reasonably be expected to know that an employee was disabled, and not whether it could have done more to discover this.