The EAT upheld a decision that the employer could not reasonably be expected to know of the disability, partly because there were reasoned OH reports that the claimant did not have a disability.
The claimant had a poor attendance record going back to the beginning of his employment. He then had two periods off work (both longer than expected) for surgery to correct carpal tunnel syndrome. These triggered a final review under the absence policy and it was decided to dismiss him.
The EAT upheld the tribunal decision that there was no discrimination arising from disability (s.15 EqA), because the employer did not know and could not reasonably be expected to know of the disability. This was in the light of the fact that there were reasoned OH reports, independent consideration by the employer, no assertion by the claimant and trade union that he was disabled, and nothing to alert the managers of a need to look beyond those conclusions.
OH professionals had unanimously concluded across four reports that the claimant’s condition was not a disability. The last of these reports, in particular, contained far more than a bare assertion that the claimant was not disabled, and appeared to answer the three statutory questions that arise in determining whether there was disability as set out in the Court of Appeal judgment in Gallop.
The court also rejected a claim for unfair dismissal.
The case is Kelly v Royal Mail, www.gov.uk/employment-appeal-tribunal-decisions/mr-r-kelly-v-royal-mail-group-ltd-ukeat-0262-18-rn