Occupational Health case update

Employment Law UpdateClinical Conference

Morag Hutchison, Partner

30 June 2015

AberdeenEdinburghGlasgow

Disability: Recent updates

Definition of Disability

“A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”

Section 6(1), Equality Act 2010


• Four part test:

– Does the person have a physical or mental impairment?

– Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?

– Is that effect substantial?

– Is that effect long-term?


• Also remember:

– Deemed disabilities: e.g. blindness, severe disfigurement, cancer, HIV infection and multiple sclerosis

– Excluded conditions: e.g. addiction or dependency, hayfever, voyeurism, tendency to set fires…

Is it a Disability?

Obesity

Karsten Kaltoft v The Municipality of Billund


Facts• Mr Kaltoft worked as a childminder in Denmark for 15 years

• He was dismissed, ostensibly on grounds of redundancy, following a downturn in work

• Mr Kaltoft had a BMI of 54

• According to the World Health Organisation, a BMI in excess of 40 is categorised as class 3 obesity (the most severe category) described as “extreme or morbid obesity”


Facts• Mr Kaltoft claimed that he had been dismissed

because of his obesity

• He brought proceedings in a Danish District Court

• The District Court referred the case to the ECJ for guidance as to whether obesity can be classified as a “disability” under European law


Decision• The European Court of Justice held:

– There is no general principle that prohibits discrimination on grounds of obesity itself

BUT– The effects of obesity, may, in certain

circumstances, mean that a person is disabled and protected from discrimination

Disability discrimination

• Critical issue is the effect of any impairments rather than their cause

Things to consider

• Do employers have a duty to consider reasonable adjustments to working practices and/or workplaces for obese employees?

• Do employers have a duty to help employees lose weight?

Is it a Disability?

Type 2 diabetes

Disability Guidance

• Equality Act guidance suggests that if a person can reasonably be expected to modify their behaviour to reduce the effects of an impairment, they might not be considered disabled

• For example, a coping or avoidance strategy might alter the effects of an impairment to the extent that they are no longer substantial. If so, the person will no longer meet the definition of disability

Metroline Travel Ltd v Stoute


Facts• Mr Stoute was a bus driver for 21 years before being

dismissed for gross misconduct

• He suffered from type 2 diabetes and brought a claim for disability discrimination

• He followed a diet designed to avoid sugary foods such as fizzy drinks


Facts• The Tribunal held that he was disabled but dismissed

all of his complaints.

• Metroline appealed as it had a workforce with a number of people who suffered from type 2 diabetes

• They were worried that the decision would be used by other employees to support an argument they were disabled


Decision• The EAT held that type 2 diabetes does not itself

amount to a disability

• It held that “treatment” in the guidance was not wide enough to include abstaining from fizzy drinks

• So the effect of type 2 diabetes should be considered as if the diet was being followed

Things to consider

• An employee with a serious condition should not be assumed to be disabled for the purposes of the Equality Act

• If a condition can be eliminated or minimised by taking very simple steps, then it might not amount to a disability

• However, it is a very surprising decision given guidance

Constructive Knowledge

Can an employer simply adopt an occupational health advisor’s opinion on disability?

Gallop v Newport City Council

Facts• Mr Gallop worked for Newport City Council as a horticultural training

officer

• In 2004 he told them he was suffering with stress, with various symptoms including lack of sleep

• He was referred to Newport’s external OH who reported he was suffering from some stress related symptoms but there were no signs of clinical depression

• Between 2005 and 2008 he was often absent from work for large periods of time with what OH said was a stress-related illness linked to his work


Facts• The OH concluded that he was suffering from symptoms of depression

and stress but reported on two occasions that he was not covered by the statutory definition of disability (but no reasons were given)

• He then raised a grievance saying his GP had diagnosed him with depression and that Newport had not taken sufficient steps to ensure his health and safety at work

• He was dismissed in 2008 for historical allegations of bullying

• He brought an unfair dismissal and discrimination claim


Decision• The Employment Tribunal:

– Found at a pre-hearing review that he was disabled

– Upheld his unfair dismissal claim

– Dismissed his discrimination claim

• The Tribunal held that Newport was entitled to rely on OH’s advice on whether he was disabled and therefore did not have the requisite knowledge to be obligated to make reasonable adjustments

• The EAT agreed


Decision• The Court of Appeal overturned the tribunal and the

EAT

• The test is whether Newport had actual or constructive knowledge of Mr Gallop’s disability

• They were not entitled to unquestionably rely on the OH’s conclusion that he was not disabled


Decision• The court said that OH should be expected to focus

on and engage with the statutory test for disability

• As it didn’t do so, the Court of Appeal said the report was “worthless”

• The Court of Appeal held that responsible employers have to make their own judgements as to whether an employee is disabled

Do employers have to investigate discrepancies in an occupational health report?

Donelien v Liberata UK Ltd

Facts• Ms Donelien was employed by Liberata as a court

officer for nearly 11 years

• She was frequently absent from work due to sickness

• She was dismissed in 2009 for her persistent short term absences and failure to comply with the absence notification period


Facts• She clamed she suffered from a variety of medical

conditions, including hypertension and work-related stress

• Before her dismissal she was referred to Liberata’s occupational health service. It posed a number of questions to ascertain whether there was any medical condition that explained the pattern of absence.

• She had consulted her GP but refused to let the OH service contact her GP


Facts• The OH report stated that she was not disabled but did not address

the specific questions that Liberata had posed

• A follow up report was prepared but this did not sufficiently answer the relevant questions either

• Liberata also made other efforts to investigate whether she was disabled including ‘return to work’ meetings, as well as correspondence with her and her GP.

• After she was dismissed she brought a claim for disability discrimination and for failure to make reasonable adjustments


Decision• The employment tribunal found she was disabled but there was no duty

to make reasonable adjustments because Liberata did not have actual or constructive knowledge of disability

• The tribunal found that it was reasonable for Liberata to conclude she was not disabled as:

– The advice from OH advisor was consistent with their own knowledge

– Liberata had done all it could be reasonably be expected to do to discover any disability


Decision• The tribunal found her “attitude of confrontation and lack of co-

operation” and her refusal to allow the OH service to contact her GP had been unhelpful

• The tribunal did express concerns over the sufficiency of the OH report:

– The advisor had never met or spoken to Ms Donelien and the report was based on a document review only

– The report focussed on the cause rather than effect of her condition– The report recommended a managerial rather than medical

solution


Decision• The Claimant appealed to the EAT

• The EAT rejected the appeal holding that:

– In contrast to the Gallop case, Liberata had not relied unquestioningly on the occupational health report. Rather, it had made up its own mind.

– Liberata did enough to “escape” constructive knowledge

• Impact on the Fit for Work service?

Can an occupational health advisor’s knowledge be imputed to an employer, even if the information is not actually passed?

Imputed knowledge

• (The general principle is no)

• In Hartman v South Essex Mental Health and Community Care NHS Trust 2005 the Court of Appeal held that there was no basis upon which an employer could be said to have the knowledge of the confidential information disclosed by an employee to the occupational health advisors

Imputed knowledge

“The fact that a doctor is a salaried employee gives no other employee of that company any right of access to medical records or to the details of examination findings. With the employee’s consent, the employer may be advised of any relevant information relating to a specific matter on a strictly need to know basis, the significance of which the employee clearly understands..” If an employer explicitly or implicitly invites an employee to consult the occupational physician, the latter must still regard such consultation as strictly confidential

Imputed knowledge

However:• Opposite approach taken in the EHRC’s statutory

code of practice

• The Code does not impose legal obligations but can be used in evidence in legal proceedings and tribunals and courts must take into account any part of the Code that appears to them relevant to the proceedings

Imputed knowledge

• An occupational health (OH) advisor is engaged by a large employer to provide them with information about their workers’ health. The OH advisor becomes aware of a worker’s disability that is relevant to his work, and the worker consents to this information being disclosed to the employer. However, the OH advisor does not pass that information on to Human Resources or to the worker’s line manager. As the OH advisor is acting as the employer’s agent, it is not a defence for the employer to claim that they did not know about the worker’s disability. This is because the information gained by the advisor on the employer’s behalf is attributed to the employer

(para 5.18)

Things to consider

• The Codes goes on to say that information will not be attributed to the employer if you are providing services to workers independently e.g independent counselling service

• ((We recommend that employers should ideally ensure with you that there is a confidential and suitable means (subject to employee’s consent) for information sharing))

Reasonable Adjustments

Are adjustments reasonable?

• Would the adjustment alleviate the disadvantage?

• Is the adjustment practicable?

• Is it “job-related”?

• What are the financial and other costs of making the adjustment?

• To what extent would it disrupt an employer's activities?

• What are the financial and other resources available to the employer?

• Is external financial or other assistance available?

• What is the nature of the employer's activities and the size of their undertaking?

Is an employer’s duty to make reasonable adjustments triggered where an employee has not given any sign that she would be returning to work?

Doran v Department for Work and Pensions

Facts• Mrs Doran worked for the Department for Work and

Pensions as an administrative officer• She went off sick due to stress• She provided medical certificates, but did not

suggest a possible return if adjustments were made• She was offered administrative duties and part

time hours to support her return but never accepted these

• She was dismissed a few months later


Miss Doran brought a claim alleging (among other things) that DWP

had failed to make reasonable adjustments

She said that the suggestion they made was unreasonable as a demotion would have

reduced her salary


•The employment tribunal held that DWP’s attendance policy placed Miss Doran, a disabled person, at a substantial disadvantage

•Nevertheless, the tribunal rejected her claim

•The DWP's duty to make reasonable adjustments had not been triggered because Miss Doran had not informed it of a return date or given any other sign that she would be returning to work at a particular time

•The EAT agreed


Implications• The duty on employers to make reasonable adjustments

is only triggered where an employee indicates:

– that they might be fit to return; OR– that they would be fit if reasonable adjustments are

made

• Good practice to ask employee about reasonable adjustments and discuss these with the employer

Does there have to be a good or real prospect of a proposed adjustment removing a disadvantage?

Leeds Teaching Hospital NHS Trust v Foster

Facts• Mr Foster was a senior security inspector employed by the Trust

• In October 2006 he went on long-term sick leave with stress

• ** In 2008, the Trust said Mr Foster should be placed on its redeployment register to see if there was any work outside the security department (since that was where the stress triggers existsed) **

• He did not return to work and was eventually dismissed, on health grounds, in February 2009

• He brought a claim for disability discrimination and unfair dismissal


Decision• The tribunal held that he should have been put on their

redeployment register earlier

• If they had, there would have been a “real prospect” or a “good prospect” of his returning to work

• The Trust had therefore breached its duty to make reasonable adjustments

• They appealed


Decision• The EAT held upheld the tribunal’s decision.

• It held that there was no need for the tribunal to go as far as finding that there would have been a “good or real prospect”

• A finding that there had been a prospect of the proposed adjustment removing his disadvantage would have been sufficient


Impact• The test of reasonableness will depend on a number of

factors

• Importantly, the fact that there is a prospect an adjustment might remove a disabled employee's disadvantage (or indeed, that it would certainly do so) does not necessarily mean that the adjustment is reasonable

• It is for the employer to objectively test the ‘reasonableness’ of any step they may have to take

Is it reasonable for an employer to pay for an employee to have private counselling?

Croft Vets Ltd and others v Butcher

Facts• Mrs Butcher worked as a finance and reception manager at a

veterinary practice• There was some concerns about her performance at work• In 2010, two members of staff approached a manager expressing

concerns about Mrs Butcher, saying she was “sitting in her office staring out of the window in tears”

• She met with her employer who offered her the opportunity to continue with her current jobs under a performance improvement plan or to narrow her job description with a lower salary

• She then went off sick with depression and did not return to work


Facts• A GP recorded that Mrs Butcher had suffered from work-related stress for

two years, and had “classical depression”

• She was referred to a private consultant psychiatrist who suggested that it was predominantly work-related stress that had triggered the severe depressive episode

• He recommended that the employer pay for her to have sessions in cognitive behavioural therapy and further psychiatric sessions but there was no guarantee that her health would improve to enable her to return to work

• She then resigned on 23 November 2010


Decision• The tribunal upheld her claim for disability

discrimination and constructive dismissal claims

• In the tribunal's view, the employer should have made the adjustments suggested by the psychiatrist and paid for her to have private psychiatric counselling and CBT

• Croft Vets appealed


Decision• The EAT upheld the tribunal’s decision.

• ((It held that:– The reasonable adjustments were sufficiently “job-

related”– There were reasonable prospects that they would

be successful))


Impact• In some cases the employer will be obliged to fund a disabled

employee's private medical treatment but this will be dependant on the facts of the case

• It might well assist the employee in returning to and coping at work, which is what reasonable adjustments are designed to do

• It might help to consider how much the employee’s health problems are caused by the employer or by their work

• Remember, it for the employer to decide whether adjustments are reasonable

Mental Illnesses

Can an employee be dismissed for gross misconduct when their actions relate to their mental illness?

Burdett v Aviva Employment Services Ltd

Facts• Mr Burdett had a paranoid schizophrenic illness

• He stopped taking his medication without medical advice and sexually assaulted two female employees, and threatened to assault a security guard – so very serious misconduct

• He was arrested and detained under the Mental Health Act 1983 and faced criminal charges. He was then dismissed for gross misconduct

• The tribunal held that the dismissal could be objectively justified, as it was a proportionate and necessary means for allowing Aviva to achieve its legitimate business aim of maintaining appropriate standards of conduct in the workplace and safeguarding its employees

• The EAT allowed the appeal – overturning the tribunal’s decision

Hensman v Ministry of Defence

Facts• Mr Hensman had Asperger’s syndrome and was found to be covertly recording a

colleague in the shower area

• He was arrested and charged with various criminal offences and ultimately dismissed

• The Crown Court judge – in relation to the criminal proceedings - was satisfied that he suffers from “abnormality of the mind, Asperger's syndrome” and “was not at fault for the offence”

• Disciplinary proceedings were instigated and Mr Hensman was dismissed.

• The tribunal found that that the MoD had subjected Mr Hensman to discrimination arising from disability

• However, again, the EAT overturned the tribunal's decision.

Reconciling the two cases

• The fact they were decided differently shows it is a complex area with no clear cut answers

• The tribunals should balance the discriminatory effect on the employee against the legitimate business aim of the employer - in both cases the EAT said it failed to do so, but with different results....

• When dealing with an employee with a mental illness culpability requires very careful consideration, and employee’s mental health should be taken into account as a mitigating circumstance

Q A

Occupational Health case update

Documents

definition of disability

karsten kaltoft

effects of obesity

v stoute facts mr stoute

grounds of obesity

work mr kaltoft

mental impairment

morbid obesity