Occupational health referrals in disability cases: lessons from recent case law

An employer has a duty to make reasonable adjustments when it knows or can be reasonably expected to know that an employee is suffering from a disability.   Determining whether or not an employee has a disability for the purposes of the Equality Act 2010 is rarely straightforward, particularly where mental illness is concerned. It is for this reason that employers often seek guidance from medical professionals and make a referral to occupational health.  Recently, cases have highlighted a couple of salutary lessons to bear in mind when doing so.

Do not just rely on what the employee is (or is not) telling you: make sure to ask “the right questions”. 

In the case of Cox v Essex County Fire and Rescue Service, Mr Cox had informed his employer that he was suffering from bi-polar disorder.  This was, however, never properly confirmed to the employer by medical evidence and Mr Cox would not agree to the disclosure of his medical records. The Tribunal and the EAT both decided on the facts that, in the absence of a definitive diagnosis, the employer did not have actual or constructive knowledge of the disability.

The decision in Cox may seem surprising: Mr Cox had set out in writing to his employer the dates, symptoms, likely trigger and detailed effects of the condition.  However, once the employer was put on notice of a possible disability, it asked the right questions. The employer obtained occupational health reports, sought medical opinions on whether the employee was disabled, tried to get a report from the employee’s GP (which was refused by the employee), and sought a formal diagnosis of the condition. Despite all these actions by the employer, there was no evidence, other than what the employee was saying, that the employee was disabled.

Do not rely unquestioningly on the conclusion of an occupational health report.

In Gallop v Newport City Council the Court of Appeal stressed that the question is whether an employer has actual or constructive knowledge of the employee’s disability.  The employer cannot hide behind a medical report asserting that the employee is not disabled; this is an employment question to be determined by the Tribunal, not a medical question.

Mr Gallop was dismissed by the Council.  During his employment, he suffered from depression and the Council referred him to occupational health.  The subsequent reports stated that Mr Gallop’s medical condition did not meet the legal definition of disability but did not explain the reasons for reaching this view. The Tribunal and the EAT decided that in view of the findings of the occupational health report, the employer did not know that the employee was disabled. However, the Court of Appeal disagreed.

The Court of Appeal overturned the decision, and reasoned that although an employer should correctly seek assistance and guidance from an occupational health report (or other medical expertise) it is for the employer to make a factual judgment as to whether or not the employee is disabled.  An employer cannot simply “rubber stamp” an external opinion: although an employer would normally respect a report saying that an employee was disabled, when a report said that the employee was not disabled it was necessary for the employer to bring its own factual judgement to bear. Reiterating the advice above, an employer should tailor the questions it asks occupational health to the particular circumstances of the case, so that it can make its own assessment.

Without an employer turning its own mind to the question at hand and asking the right questions, it is unlikely to be able to argue that it either does not know or could not reasonably have known about the employee’s disability.

Soruce: http://www.lexology.com/library/detail.aspx?g=ac217788-db1e-4f68-9292-e69d38a72fbe Kingsley Napley, Kirsty Churm

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