When dealing with employee absences we always recommend seeking advice from an occupational health specialist. The occupational health specialist can review the person in more detail than you as an 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.
When requesting a report from an occupational health provider, you will always be told whether the employee’s illness is likely to 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 and triggered the absence management process which resulted in 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 then 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 then, was 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 they simply have no understanding of the medical condition the employee is dealing with.
We often advise employers 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 it is in their best interests to release this as 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.
For advice on any employment matter, contact Laura Franklin on 01782 205000 or email firstname.lastname@example.org