Case update (1): Disability discrimination – are you in the know?

We updated you in our April Newsflash Disability discrimination – are you in the know? on the EAT’s decision in Gallop v Newport City Council [2016] (available here) and here are the further details as promised…

Summary: Can knowledge by Occupational Health of a disability be imputed to the employer in a disability discrimination case, where the decision-maker did not know that the employee was disabled?

No, held the EAT in Gallop v Newport City Council.

Facts:  Mr Gallop was employed by Newport City Council.  He went off sick and told Newport City Council that he was suffering from stress, with symptoms including lack of sleep and appetite, headaches and nausea.  Mr Gallop was diagnosed by his GP as suffering from depression brought on by work-related stress. Newport City Council referred him to their Occupational Health service (OH) which reported that he had “stress-related symptoms” but there were no signs of clinical depression. 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”.  OH further simply stated that Mr Gallop’s medical condition did not meet the legal definition of disability, but without further detail.

Finally, Mr Gallop was cleared to return to work by both OH and his GP. However, Newport City Council promptly suspended him, following bullying allegations. These allegations led to his dismissal by a manager who was the sole decision maker.

Mr Gallop brought Tribunal claims for unfair dismissal and disability discrimination. Whilst his claim for unfair dismissal was successful, his claim for disability discrimination failed both in the Tribunal and the EAT, where it was decided that, in view of the findings of the Occupational Health report, the employer had not known at the relevant times that he was disabled, and therefore could not have discriminated against him on the grounds of his disability.

The Court of Appeal overturned the decision of the EAT and found that Newport City Council was not entitled to merely rely on the opinion of OH.

The Court of Appeal decided that:

• an employer can have knowledge that an employee is disabled even when it is provided with a bald (but incorrect) assertion by its Occupational Health service that an employee is not disabled; and
• an employer should not “rubber stamp” an Occupational Health adviser’s opinion on whether an employee was a disabled, but rather should ask specific practical questions directed to the particular circumstances of the case.

The Court of Appeal referred the case back to a fresh Tribunal to consider whether the Council did in fact know or could have known of the employee’s disability.

The (fresh) Tribunal held that the employer did not, and could not know, that the employee was disabled person for the purposes of the employee’s direct disability discrimination claim. This was still the case, despite of its ill-advised reliance on the Occupational Health adviser’s opinion.

The EAT upheld this decision and found that, where there is a sole decision maker, the crucial question in determining whether there has been discrimination, is the state of mind of that decision maker and not the state of mind of those providing information to them.

The EAT found that a Tribunal should focus on the thought-processes and motivation of the decision-maker.  In this case there was no evidence that the decision to dismiss was because of an intention or motivation stemming from the employee’s disability. The employee’s argument that the knowledge of disability of one employee (in this case Occupational Health) must be imputed to all employees was misconceived in the context of direct discrimination.

Implications:  Although a helpful decision for employers in that it is the decision-maker’s state of mind which is important when deciding if discrimination occurred, it is worth noting the following:

• it conflicts with the EHRC Statutory Code of Practice on Employment (paras.5.17 to 5.19), which provide that employers will usually not be able to use the knowledge defence to a disability discrimination claim if an employer’s agent or employee (such as Occupational Health) has knowledge.
• it was in respect of a direct disability claim and may not apply to failure to make reasonable adjustments claims.
• this does not water down the Court of Appeal’s decision that an employer should not “rubber stamp” an Occupational Health adviser’s opinion on whether an employee was a disabled, but rather should ask specific practical questions directed to the particular circumstances of the case  i.e. employers still need to address the issue of disability clearly, examine any medical reports, and challenge the advice you receive when necessary.