Disability and Constructive Knowledge: Donelien -v- Liberata UK Limited, EAT

In this case the EAT had to consider whether an employer had constructive knowledge of an employee’s disability where the employer had relied on an occupational health report which had been flawed with discrepancies but had nonetheless taken some other measures too. In this case the EAT held that the employer had taken reasonable steps, but not every step possible, in order to establish whether the employee was disabled. The EAT held that nonetheless the employer had done enough to avoid having constructive knowledge of the disability.

This case provides some comfort for employers dealing with continuous short term absences. It establishes that an employer does not need to have taken every step possible in order to discover an employee’s disability. However, the case does clearly set out that each case will be determined by it’s facts so it doesn’t set a hard and fast rule for employers.

We always advise that where it is obvious on the face of medical or occupational reports that they are flawed or that they are inconsistent that further investigation should be undertaken. Furthermore an employee can move from not being disabled to being disabled within a short period of time once, for example, underlying causes of various ailments are identified and therefore employers should be cautious in their decision making.

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