Q v L

Confidential medical information given to an occupational-health provider is not imputed to the employer merely because the employee expected it to be disclosed. In the absence of wider written consent, consent to provide an opinion on fitness for work does not authorise disclosure of the underlying medical information. An employer may nevertheless be required to make further enquiries and seek consent where information available to it puts it on notice of a possible disability.

In a reasonable-adjustments claim, the tribunal must determine whether each proposed adjustment is reasonable. It must balance the substantial disadvantage arising from disability against the employer’s reasonable needs, including the practical consequences of altering duties or workload.

The employee, who had Tourette’s syndrome and Asperger’s, succeeded before the Employment Tribunal in a claim that the employer had failed to make reasonable adjustments under the Equality Act 2010. The Tribunal also made anonymity orders and directed that its judgment should not be entered on the Register.

The employer appealed. It challenged the finding that occupational health’s knowledge of Tourette’s was attributable to it from the start of employment, the findings on reasonable adjustments, and the order preventing entry of the judgment on the Register. The central issues were the employer’s actual and constructive knowledge of disability, the adequacy of the Tribunal’s assessment of reasonable adjustments, and the lawful scope of anonymity and reporting restrictions.

1. Appeal allowed in part. The Employment Tribunal erred in treating the employer as fixed from the outset with occupational health’s knowledge that the employee had Tourette’s syndrome. The employee’s written consent permitted occupational health to provide an opinion on fitness for work, not to disclose the confidential medical information underlying that opinion. The employee’s expectation that information would be passed on could not enlarge the occupational-health provider’s duty-bound authority to disclose it.

2. The error did not affect the Tribunal’s alternative finding of constructive knowledge. The occupational-health report’s recommendation to control work stress, the employee’s requests for occupational-health assistance, and his indication that relevant information had been supplied during pre-employment assessment required the manager to make further enquiries. It was not perverse to find that the manager should have sought the employee’s consent to disclosure and that it would have been given. Ground 1 therefore failed overall.

3. Ground 2 succeeded. The Tribunal had not adequately considered whether the proposed adjustments were reasonable. It had to assess the tasks actually required at each material time and balance the disability-related substantial disadvantage against the employer’s reasonable needs. This required findings about matters such as which duties could be removed, how they could be performed, and the practical effect of a reduced workload. The reasonable-adjustments claim under sections 20 and 21 of the Equality Act 2010 was set aside and remitted to a differently constituted Tribunal.

4. The anonymity orders were upheld. The Tribunal was entitled, absent perversity, to attach weight to clinical evidence that identification could cause psychological harm. However, Rule 50(3)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 did not permit an order that the judgment be excluded from the Register. That order was set aside. The EAT directed anonymisation changes and redactions reasonably necessary to preserve anonymity.

5. The employee’s later requests to anonymise the disabilities themselves, redact their effects, delay publication of the EAT judgment, and obtain an option to withdraw were refused. The EAT temporarily suspended enforcement of the order requiring Register entry for a potential appeal on Ground 3.

• Employment Appeal Tribunal: Appeal from the Employment Tribunal’s judgment sent to the parties on 21 May 2018. Ground 1 was dismissed; Ground 2 was allowed and the reasonable-adjustments claim remitted to a differently constituted Tribunal; Ground 3 was allowed only as to the order preventing entry of the judgment on the Register.
• Employment Tribunal: Found a failure to make reasonable adjustments under section 21 of the Equality Act 2010. It also made anonymity and non-publication orders under Rule 50 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.