Is an employer entitled to rely on Occupational Health advice about disability?

Employers often seek Occupational Health or other medical advice regarding the question of whether an employee meets the definition of disability – and they are usually right to do so. Although the question of whether someone meets the definition of disability is strictly speaking a legal one, it is best informed by medical advice. So what happens when the medical adviser gets it wrong – is the employer entitled to rely on that advice?

Background

The previous case law on this area suggested that wasn’t necessarily the case. As we covered in our previous article back in 2013, the case of Gallop v Newport City Council concluded that the employer should not have ‘unquestioningly’ adopted the advice of Occupational Health and that as a result, they were deemed to have knowledge of the employee’s disability (despite having been advised by Occupational Health on several occasions that the definition of disability was not met).

Kelly v Royal Mail Group

The case of Kelly v Royal Mail Group is a bit of a relief for employers. In the case, Mr Kelly was a postman who had a poor attendance record, partly due to carpal tunnel syndrome. He was taken through Royal Mail’s attendance policy and ultimately he was dismissed.

He then brought an Employment Tribunal claim for disability discrimination, along with some other claims. The Employment Tribunal dismissed his disability discrimination claim on the basis that Royal Mail had not known (i.e. they did not actually know, nor did they have reasonable grounds to know) about his disability. This was because the Occupational Health reports had concluded that he was not disabled.

Mr Kelly appealed to the Employment Appeal Tribunal (EAT), saying that Royal Mail had simply unquestioningly relied upon the Occupational Health reports, i.e. using the argument from the Gallop case.

The EAT rejected his appeal. They felt that in this case the evidence showed that Royal Mail had given proper consideration to the Occupational Health reports regarding whether or not Mr Kelly met the definition of disability, meaning that reliance on the reports did not amount to a simple ‘rubber stamping exercise’. In addition, the reports were not just a bare statement that Mr Kelly was not disabled, they explained their reasoning for the conclusion.

Therefore, Royal Mail was not deemed to have known about Mr Kelly’s disability, meaning that it could not have discriminated against him because of it.

The EAT pointed out that “the Tribunal also noted, correctly, that an employer may attach considerable weight to the informed and reasoned opinion of an Occupational Health medical consultant in reaching its own assessment.”

Lessons for employers

This case is good news for employers who understandably wish to be able to rely upon the independent medical advice they receive.

However, for your organisation it is worth making sure:

• that your independent medical reports are detailed as to the reasoning for the medical adviser’s conclusions – you can help to get this level of detail by asking the right questions of the adviser.
• that you are able to show that you have not just ‘rubber stamped’ the advice you receive. There is no set way of doing this, but it may be worth keeping a file note showing that the report was given consideration, what factors were taken into account, and keeping records of any follow up questions asked.