Page 4 - AVRO News Issue 1 March

Employee Disability;

Employer Knowledge

“ refused to allow

occupational health to

contact her GP

he Court of Appeal has reasonable... in order to prevent fea- Appeal judgment, stated he had“no
recently made a decision ture, having that effect”. This there- difficulty in understanding why the
“
in favour of an employer in fore imposes the duty to make rea- ET came to the conclusion that
T the case of Donelian v sonable adjustments for the disabled the Respondent “did all they could
Liberata UK Ltd, which involved individual in question, in a bid to re- reasonably be expected to have
claims of unfair dismissal, disability duce any negative impact on them. done to find out about the nature of
discrimination, ‘whistleblower the health problem that the Claimant
detriment’ and unlawful deduction of In this case, the ET ruled that the was experiencing””.
wages. All claims had previously been Respondent had done all that they
heard in both the Employment Tribunal could reasonably be expected to do Although the DDA 1995 is no longer
(ET) and Employment Appeal Tribunal in terms of any disability the Claimant in force, the Equality Act 2010
(EAT), but the Court of Appeal was may have had. They had considered (EA 2010) has taken its place in
only concerned with the claim relating the true nature of her health prob- providing legislation for the purposes
to disability discrimination. lems by referring her to Occupational of disability discrimination. The
Health, holding return to work meet- provision in the EA 2010 is essentially
Ms Donelian claimed that the ings, and reviewing the letters written the same as that in the DDA 1995.
Respondent employer, Liberata by her GP. Although Ms Donelian had Section 6 (1) states that a person has
UK Ltd, failed to make reasonable taken sickness absences from work, a disability if:
adjustments in accordance with the many of these were due to flu and (a) They have a physical or mental
duty contained in section 4A of the very generic references to stress. impairment, and
Disability Discrimination Act 1995 These would not typically lead an b) The impairment has a substantial
(DDA 1995), the legislation in force at employer to believe their employee and long-term adverse effect on their
the time. was disabled and, as such, the Re- ability to carry out normal day-to-day
spondent was found to have acted activities.
The issue considered originally by the reasonably.
ET was the employer’s knowledge “Long-term” is defined as an
of disability in the context of an In addition, the Claimant was con- impairment which has lasted, or is
alleged failure to make reasonable frontational towards the Respondent; likely to last, for at least 12 months.
adjustments. she failed to fully co-operate with Subsequently, section 20 imposes the
them and refused to allow Occupa- duty to make reasonable adjustments
In the ET, it was decided that the tional Health to contact her GP. In if the person is disabled. It gives the
Claimant was disabled in the final light of this, the Respondent could example of a physically disabled
two months of her employment. have been seen to have acted even person being at a disadvantage with
Under section 1 of the DDA 1995, an more reasonably in attempting to as- the physical features of a building,
individual is disabled: …if he has a sist her. and implements the following duties:
physical or mental impairment which - To remove the physical feature,
has a substantial and long-term Not only did the ET dismiss the - To alter the feature, or
adverse effect on his ability to carry out Claimant’s claim, but so did the EAT, - To provide reasonable means of
normal day-to-day activities. and she therefore proceeded to the avoiding it.
Court of Appeal which dismissed the
It then follows under section 4A that, claim for a third time. The Court of For example, accessing and exiting
if the disabled person is placed at a Appeal raised the point that the ET, a building could be difficult for a
disadvantage in comparison to non- in the first instance, had to determine disabled individual in a wheelchair,
disabled comparators, the company what the Respondent could reason- and you may therefore be expected
should “take such steps as it is ably have been expected to know.
Lord Justice Underhill, in his Court of Continued on the next page
4 AVRO NEWS