The EAT has held in Kelly v Royal Mail Group Ltd that, in the absence of other evidence, an employer's reliance on occupational health reports to determine whether an employee is disabled will not necessarily be considered a rubber-stamping exercise.
The claimant had a poor attendance record and, after absences to undergo carpal tunnel syndrome surgeries, triggered the final stage of the respondent's Attendance Policy and was dismissed. He brought a claim for discrimination arising from disability.
The tribunal dismissed his claim on the basis that the respondent did not have actual or constructive knowledge of his disability. One of the grounds of appeal to the EAT was that the tribunal erred in finding that the respondent had properly considered the question of disability when it had simply relied on the claimant's occupational health reports.
The EAT held that when the occupational health reports consider the question of disability in detail, and in the absence of any other evidence (including evidence from the claimant), reliance on them will not be considered a rubber-stamping exercise. Here the EAT found that the employer gave independent consideration to the matter of whether the claimant was disabled rather than unquestioningly following the occupational health reports. However, the tribunal had also found that the occupational health professionals had unanimously concluded across four reports that the claimant's condition did not fall within the definition of disability.
Take note: In Nigel John Gallop v Newport City Council the Court of Appeal held that it is the ultimate responsibility of an employee to make "the factual judgement as to whether the employee is or is not disabled". However, although it will not be enough to "rubber stamp" an occupational health adviser's opinion, an employer who takes other evidence into account in addition to relying on such an opinion should be taken to have discharged that responsibility. It is always a good idea to instruct occupational health advisers properly with specific practical questions designed to address whether the individual being referred is suffering from a disability.
This article is taken from HR Law – July 2019