Disability – what to ask occupational health?
The employee in this case had frequent periods of sick leave, all for different ill health issues, including stress, viral infections and high blood pressure. The employer referred the employee to occupational health (OH) and asked if she had a condition which could be a disability. The OH report stated that the employee did not have a disability and her problems were "managerial not medical". After further sickness absences, the employer began disciplinary proceedings and subsequently dismissed the employee for unsatisfactory attendance and failure to comply with absence notification procedures (as she had not always informed the employer when she was absent through illness). The employee brought a claim of disability discrimination, including a failure to make reasonable adjustments.
The Tribunal decided that the employee did have a disability, but that the employer had not known, and could not reasonably be expected to have known, that the employee was disabled, which meant it was not required to make reasonable adjustments. The employee appealed unsuccessfully to the EAT and then to the Court of Appeal. She argued that the employer should not just have accepted the OH report that she was not disabled, but carried out further investigation and reached its own decision.
The Court of Appeal confirmed that an employer should not simply adopt an unreasoned OH opinion without question, and should form its own view on whether an employee is disabled. In this case the employer had, in addition to consulting occupational health, had discussions with the employee and correspondence with her GP, and there had not been any information arising from this which suggested a disability. In the circumstances the employer could not have been expected to do more, and the employee's appeal failed.
This case is a reminder of the importance of obtaining a full occupational health report and considering it carefully. Employers should ask detailed questions of occupational health when referring the employee, and should review the report thoroughly. If the report is unclear in any way, or if questions have not been answered, then further information and clarification should be sought. Employers should also ensure that they speak to the employee on an ongoing basis about their condition, and whether there are any adjustments which might enable the employee to return to work. In some cases, for example if the employee has a complex or unusual condition, it may also be advisable to obtain a report from a specialist independent medical adviser.
DONELIEN V LIBERATA UK LTD
References following a disciplinary investigation – how much should you disclose?
The employee was an independent financial adviser (IFA). Following concerns about advice he had given to clients, he was required to obtain pre-approval from an internal review team before giving advice or making any sales. On two occasions the employee made a client sale without pre-approval. After the second occasion, the employer terminated the employee's authorisation to work as an IFA. The employee subsequently asked the employer for a reference, which the employer provided. The reference referred to the transactions the employee had made and its conclusion that he had "deliberately circumvented" the pre-approval process. The employee claimed that the reference was negligent because the opinions were based on an internal investigation which the employee believed was a sham.
The High Court dismissed the employee's claim. The Court confirmed that the employer's obligation when giving a reference is to review the facts objectively, and ensure that the reference is accurate and not misleading, whether by omission or implication. In this case, the employer had carefully reviewed all the relevant materials, including the statements and notes produced in the investigation, and produced a reference which was neither inaccurate nor misleading.
An employer who provides a reference owes duties to the former employee and to the prospective employer, to ensure that the reference is accurate and not misleading. This can cause difficulties where there have been issues with an employee's conduct or performance. Mentioning the issues are likely to mean that the employee will have difficulty getting another job, and is more likely to bring a claim. Omitting to mention the issues could lead to a claim by the prospective new employer that the reference was inaccurate or misleading (although in practice this type of claim would be unusual).