Labour & European Law Review Weekly Issue 632 07 August 2019
Even if they do not have actual knowledge that an employee has a disability, employers can be held to have constructive knowledge of one. In Kelly v Royal Mail Group Ltd, the Employment Appeal Tribunal (EAT) held that the employer could not be held to have constructive knowledge that their employee was disabled, not least because four medical reports and Mr Kelly himself said he was not.
Mr Kelly, who had worked as a postman for Royal Mail from 1996 had a poor attendance record which he attributed to “bad luck and family issues”. However, as a result, he had repeatedly triggered the company’s three-stage attendance review (AR) policy.
In 2017 he had two further periods of absence to correct the carpal tunnel syndrome (CTS) in his wrists which triggered the second and third stages of the AR policy. This entitled Royal Mail to review the whole of his attendance record. The manager dealing with the third stage concluded that, given Mr Kelly’s sickness record as a whole, he was unlikely to maintain a satisfactory attendance record in the future and dismissed him in August 2017.
Mr Kelly brought a claim for discrimination arising from disability under section 15 of the Equality Act 2010 as well as a claim for unfair dismissal.
The tribunal dismissed his claim of disability on the basis that Royal Mail did not know, nor did it have constructive knowledge of it, not least because occupational health (OH) had written four reports saying he was not disabled. Indeed, Mr Kelly himself and his trade union representative had said he was not disabled. His employer did not therefore have any reason to “conduct further enquiry”.
As for the claim of unfair dismissal, the tribunal held that it was within the band of reasonable responses for Royal Mail to dismiss him, given his long history of absences and attendance review referrals.
Mr Kelly appealed, arguing that the tribunal was wrong to decide that Royal Mail did not have constructive knowledge of his disability, given that it had done little more than “rubber stamp” the conclusions of OH. In addition, he argued that it was perverse to find the dismissal fair for two periods of absence for corrective surgery for which he was essentially blameless, and for Royal Mail to rely on earlier absences.
The EAT dismissed his appeal. With regard to the disability claim, it held that Royal Mail had not simply rubber stamped the OH reports, but rather his manager had considered the matter independently and had not just followed them unquestioningly. Apart from anything else, the last report had explicitly stated that he was not suffering from any impairment and that his prognosis was good. In addition, Mr Kelly had not suggested that he suffered from any adverse effects on his day-to-day activities as a result of a disability.
Nor was the decision to dismiss perverse. As the policy expressly permitted earlier absences to be taken into account, conduct in line with that policy was unlikely to be unfair. The periods of absence for corrective surgery were, in each case, extended by other factors, and it was not outside the band of reasonable responses to take those absences into account. The policy applied to all absences, irrespective of fault or blame, and Royal Mail was entitled to look at the overall pattern of absence in determining whether there was a likelihood of satisfactory attendance in the future.
This case follows on from the Court of Appeal’s Judgment in Gallop v Newport City Council (weekly LELR 357), in which it provided guidance on establishing whether an employer has actual or constructive knowledge of a disability. It stated that disability could be regarded as having three elements: (a) a physical or mental impairment, which had (b) a substantial and long-term adverse effect on (c) the ability to carry out normal day-to-day activities. Provided that the employer had actual or constructive knowledge of the facts constituting the employee’s disability, they did not need to know that, as a matter of law, the consequences of such facts were that the employee was a “disabled person” as defined in the Act. Gallop illustrated the need for an employer, when seeking outside advice from clinicians, not simply to ask in general terms whether the employee was a disabled person within the meaning of the legislation but to pose specific practical questions directed to the particular circumstances of the putative disability. Where the opinion given was that the employee was not disabled, the employer must not forget that it was they who had to make the factual judgement; they should not simply rubber stamp the opinion that they were not.
Unfortunately in this case Mr Kelly was not able to rely on the useful guidance in Gallop to overcome the OH report’s negative view on disability as he had not provided evidence of the three elements to establish disability, in particular evidence relating to how the impairment impacted on his day-to-day activities. This case is therefore a useful reminder of the importance of a worker not just asserting that they have a disability during the course of a capability process but also evidence relating to the three elements of disability.