Court of Appeal rules on employer’s knowledge of employee’s disability
The Court of Appeal issued an important judgment this week on disability discrimination. In the case of Nigel John Gallop v Newport City Council (2013), the key issue was whether an employer could have actual or constructive knowledge of a disability when it had received advice from medical advisers that the employee was not a “disabled person”.
Mr Gallop had complained of work-related stress. The local authority's occupational health advisers assessed him as suffering from a stress-related illness but said that he was not "disabled" because he was not suffering from a depressive illness. Over the following two years, Mr Gallop was absent for long periods because of work-related stress. During that time the local authority asked the occupational health advisers whether the Disability Discrimination Act 1995 was applicable to him (the case pre-dated the Equality Act 2010), and were repeatedly told that it was not. The occupational health advisers did not provide any supporting reasons for their opinions, which amounted to no more than assertions of their view that Mr Gallop was not "covered" by the Act. The local authority eventually summarily dismissed Mr Gallop for gross misconduct.
Mr Gallop brought Employment Tribunal proceedings for unfair dismissal and disability discrimination. The tribunal found that he was "disabled" for the purposes of the Act, but his claim was dismissed on the ground that the local authority had not had constructive knowledge of that disability. The EAT held that the local authority 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.
The Court of Appeal allowed Mr Gallop’s appeal on the basis that it was arguable that the tribunal had misdirected itself in finding that the local authority had no knowledge of his disability. The Court held that:
- In order to be answerable for disability discrimination against an employee, the employer had to have actual or constructive knowledge that the employee was a disabled person.
- That knowledge was of the facts constituting the employee's disability as identified in what is now the Equality Act namely (a) a physical or mental impairment, which had (b) a substantial and long-term adverse effect on (c) his ability to carry out normal day- to-day activities.
- Provided that the employer had actual or constructive knowledge of those facts, it did not need to know whether, as a matter of law, the employee was a "disabled person" as defined in the Act.
The case highlighted the need for an employer, when seeking external medical advice, to raise specific questions relating to the particular circumstances of the alleged disability. Ultimately, it was for the employer to make the factual judgement on whether the employee was disabled rather than relying on an opinion that he was not.
What to take away
It is common practice for employers to seek occupational health advice on whether or not employees are “disabled” as defined by the Equality Act. As a result of this judgment, employers will need more focussed advice on whether the key factual requirements for establishing disability are met. If they are, then in order to avoid the risk of discrimination claims, the employer should proceed on the basis that the employee is disabled notwithstanding any opinion from occupational health advisers that they do not come within the statutory definition.