Employment Law Speed Read – 17/06/19

Background

The Claimant, Mr Kelly, worked as a postman for Royal Mail Group (Royal Mail) and had a poor attendance record generally and had triggered Royal Mail’s attendance policy on several occasions. In 2017, Mr Kelly had two further periods of absence following surgery for Carpal Tunnel Syndrome in each of his hands. These absences triggered the final stage of Royal Mail’s attendance policy and Mr Kelly was dismissed. Royal Mail referred Mr Kelly to Occupational Health on four occasions, which all ruled out disability and gave a prognosis of a full recovery.

Employment Tribunal (ET)

Mr Kelly brought claims of unfair dismissal and discrimination arising from disability. Whilst the ET felt that the decision to dismiss was harsh, it fell within the band of reasonable responses and held that Mr Kelly’s dismissal was fair. Mr Kelly’s claim for discrimination arising from disability was also dismissed on the basis that Royal Mail did not have actual or constructive knowledge of his disability. The ET found that Royal Mail had considered whether Mr Kelly was disabled and held that it would be rare for an employer to seek further clarification as to whether an employee was disabled where the “unanimous and unambiguous” advice from Occupational Health and the employees own representations all weighed against the possibility of a disability.

Mr Kelly appealed on the grounds that it was perverse to conclude that it was fair to dismiss him for two periods of absence, for which he was blameless, and for Royal Mail to rely on his earlier absences. He also appealed on the basis that the ET had erred in accepting that Royal Mail did not have constructive knowledge of his disability where it did little more than “rubber stamp” the conclusions of Occupational Health.

Employment Appeal Tribunal

The EAT dismissed Mr Kelly’s appeal. The EAT found that the fairness of the dismissal could not be said to be perverse – Royal Mail’s policy expressly permitted Mr Kelly’s earlier absences to be taken into account.

As to disability discrimination, the EAT held that the occupational health reports contained far more than “a bare assertion” that Mr Kelly was not disabled and Mr Kelly’s manager had given independent consideration to the reports rather than unquestionably followed the occupational health reports. In addition, there was no evidence from the Claimant, nor his trade union representative, at the time asserting that he had a disability.

Therefore, Royal Mail were not simply “rubber-stamping” the views of an occupational health report and the EAT concluded that Royal Mail did not have knowledge of the Claimant’s disability.

Comment

This decision is helpful guidance to employers dealing with absence management issues, particularly where advice from Occupational Health is sought. The decision confirms that employers should make their own factual judgment as to whether the employee is disabled, but considerable weight can be attached to the informed and reasoned opinion of Occupational Health.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.