Can an employer have knowledge of an employee’s disability when occupational health advisers state that the claimant is not disabled?

The legal background

One of the key issues in a claim for disability discrimination is whether the employer was aware, or should have been aware, that the employee was disabled. This is because, for an employer to be answerable for alleged disability discrimination, they must have known, or be in a position where they should have known, that the employee is disabled.

The facts of this case

Mr Gallop was employed by Newport City Council. He suffered from stress and advised his employer that his symptoms included lack of sleep and appetite, headaches and nausea. Newport City Council referred Mr Gallop to Occupational Health service (OH) which reported that he had "stress-related symptoms" but there were no signs of clinical depression and therefore not “disabled”. On a number of occasions over the course of the next few years, Mr Gallop was signed off sick, with what OH said was a work-related "stress-related illness". However, OH did not consider that he had a "depressive illness".

On Mr Gallop’s return from sick leave he was suspended due to allegations of bullying and harassment and subsequently dismissed for gross misconduct.

Mr Gallop brought Employment Tribunal (ET) proceedings for unfair dismissal and disability discrimination. The ET held that Mr Gallop was "disabled" within the meaning of the legislation. However, his claim failed because his employer did not have knowledge of that disability.

Mr Gallop appealed to Employment Appeal Tribunal (EAT). The EAT held that Mr Gallop’s employer had been entitled to rely on the advice of its occupational health advisers that Mr Gallop was not disabled within the meaning of the Act.

Mr Gallop appealed to the Court of Appeal. The Court of Appeal allowed the appeal.

The Court of Appeal held that Newport City Council was not entitled to rely on the opinion of OH and stated that it is ultimately for the employer itself to make its own factual judgment as to whether or not the employee is disabled. An employer cannot simply "rubber stamp" an external opinion.

The case was remitted to a new employment tribunal to re-hear the case. The Employment Tribunal dismissed the claim. Mr Gallop submitted an appeal to the EAT. The EAT dismissed the appeal. It held that knowledge of the disability on part of the organisation cannot be imputed on the whole organisation generally. It re-affirmed the principles that the person making the decision has to consider the information that they have available and within their knowledge at the relevant time.

Guidance

This case is helpful for employers. However, it does not negate the need to obtain expert evidence on an employee’s health condition. It is common practice for employers to obtain advice from medical experts including occupational health. However, when seeking advice, employers should ask specific questions to determine for themselves whether an employee is disabled within the meaning of the legislation. For example:

  • Does the employee suffer from a physical or mental illness?
  • If so what is the illness?
  • Does it affect the employee’s normal day to day activities?
  • If so does it have a substantial effect?
  • Is the impairment long term i.e. likely to last more than 12 months?

An employer can then make its own assessment based on the answers to the key questions as to whether the employee is disabled within the meaning of the legislation.

If you require any information or further advice please contact:

Sejal Raja
Partner and Head of Employment
T.
020 7227 7410
E. sejal.raja@rlb-law.com


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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