Occupational health reports – can you rely on them to determine disability status?

17/06/2019

Occupational health reports are vital pieces of information that help employers manage long-term absence and provide support to sick or disabled employees. An occupational health report provides information about an employee’s medical status and their ability to return to work, in some cases with adjustments. They can also be used in the event of a disability discrimination claim. However, while some employers may rely solely on these reports should a claim be made against them, this may not be the right course of action.

When dealing with employee absences, we always recommend seeking advice from an occupational health specialist who will provide you with an occupational health report. The occupational health specialist can review the person in more detail than you as the employer can – they can see the employee’s medical records, and their knowledge and experience will help provide guidance on what you could do to help the person return to work.

What will a report from an occupational health provider say?

A report from an occupational health provider will always tell you whether the employee’s illness will likely be a disability under the Equality Act 2010. Often this view is then relied on by employers, but should it be?

The tribunal has reviewed this point in the case of Kelly v Royal Mail Group Ltd. The employee was absent after carpal tunnel syndrome treatment which triggered the absence management process resulting in their dismissal. The employee brought a claim for discrimination arising from disability.

The tribunal dismissed the claim stating that the employer had no knowledge of a disability (and shouldn’t have been expected to know). The case was appealed on the basis that the employer blindly relied on the occupational health report. The Employment Appeal Tribunal (EAT) determined that when such reports deal with the question of disability in detail and where there is no other evidence for the employer to rely on, such reliance is not just a rubber-stamping exercise.

This decision is in contrast to the case of Gallop v Newport City Council in which the employer was required to make a factual judgement as to disability status. However, the employee was then absent due to depression and the current case differs as his absence was from a treatable condition.

Unless appealed further, the Kelly case is useful for employers where they may have a complex medical case, or when they simply have no understanding of the medical condition the employee is dealing with.

What happens if the employee refuses to provide any evidence of a disability?

We often advise employers in circumstances where the employee does not or will not provide any further evidence. Many have refused to provide access to medical records too. In this instance, I would advise the company to inform the employee that it is in their best interests to release this. Without any further evidence, the company will make decisions based on the evidence that is available to them.

The Kelly case now further supports this view where in the absence of any other evidence, the employer can rely on the occupational health report and make relevant decisions.

Need employment law advice?

For advice on any employment matter, including occupational health reports, contact Laura Franklin on 01782 205000 or email laura.franklin@beswicks.com. Alternatively, you can find out more about our employment law.