As the government has announced the proposal for a new ‘Health and Work Service’ to offer free work focused Occupational Health (OH) referrals, consideration should be given to the extent to which employers can rely on the opinions of OH advisers.
The Court of Appeal has recently grappled with this issue in a case that was brought before the Equality Act 2010 came into force, but the issues covered remain relevant for employers who intend to rely on OH opinions under the current regime.
The Court of Appeal had to consider whether an employer that had constructive knowledge of an employee’s symptoms that could have pointed to a disability (mental illness) could rely unquestioningly on OH opinions that the employee was not disabled. In 2004, the employee had made his employer aware that he was suffering from a number of symptoms such as lack of sleep, nausea, poor concentration and headaches. Over the next few years the employee was assessed on a number of occasions by OH. Each OH adviser was of the opinion that the employee would not be covered by the Disability Discrimination Act 1995 on account of his condition not amounting to a ‘disability’.
In 2008 the employee was suspended and dismissed for allegations of bullying going back to 2005. He subsequently brought tribunal proceedings for unfair dismissal, direct disability discrimination and a failure to make reasonable adjustments. On the point of direct disability discrimination both the tribunal and subsequently the Employment Appeal Tribunal (EAT) found that the employer did not have actual or constructive knowledge of the employee’s disability. They both agreed that the employer was entitled to rely on the unequivocal opinions obtained from OH that the employee was not disabled.
However, the employee appealed and the Court of Appeal upheld the appeal on the basis that both the Tribunal and the EAT had erred in law in relation to the actual or constructive knowledge of the employer. The employer had known about the various symptoms of the employee that had persisted over a number of years but had instead chosen to rely solely on the OH opinions it had obtained. The Court of Appeal stressed that employers should factor in the opinions of OH advisers to their decisions but must make their own judgments using that guidance. Employers should ensure that they do not simply ‘rubber stamp’ OH opinions.
The Court of Appeal will now remit the case back to the employment tribunal where consideration will be given to whether the employer had actual or constructive knowledge of the employee’s disability. If this is found to be the case then the employee could be found to have been discriminated against.