You will recall us reporting on the case of Gallot –v- Newport City Council, where an employer had “rubber stamped” an unreasonable occupational health assessment on the question of the disability of one of their employees without questioning it, or addressing their mind to it sufficiently, and going on to a decision that the employee was not disabled.
In the case of Donelien –v- Liberata UK, a similar question arose as to whether an employer should have known that an employee is disabled when medical evidence wrongly stated that the employee was not disabled. The case was in respect of the failure to make reasonable adjustments.
The Tribunal found that despite medical reports to the contrary that the employee was disabled and met the required definition, the employers should have made reasonable adjustments.
The employer appealed and argued that they did not know and could not reasonably be expected to have known. On the facts of this particular case, the Court of Appeal agreed because this employer not only had occupational health advice but based their decision on return to work meetings they had held with the employee, and also letters from his GP, rather than relying simply on an occupational health opinion.
It is therefore advisable to always be cautious when receiving occupational health advice and seek additional reports where necessary. This provides uncertainty for employers, but it comes down to the necessity of always addressing your mind rather than just going through the necessary steps without looking at the facts and information you have and investigating further. Keeping a paper trail of why certain decisions were made at each particular step will also help. Just going through the motions without questioning advice will no longer be acceptable.