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

We continue with our theme from November’s Newsletter of cases dealing with disability discrimination and this is a further case on when an employer may, or may not, be ‘in the know’ about an employee’s disability.

Summary:  Does an employer know that an employee is disabled even when it is provided with a bald (but incorrect) assertion by its Occupational Health service that the employee is not disabled?

Yes, says the Court of Appeal in Gallop v Newport City Council [2013].

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.

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 stated that, although an employer should correctly seek assistance and guidance from an Occupational Health report or other medical expertise, 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 Court of Appeal added that the case emphasises that an employer, when seeking advice from external clinicians, should not ask general questions about whether an employee is disabled within the meaning of the discrimination legislation. Instead, the employer should ask specific practical questions, directed to the particular circumstances of the employee’s putative disability. The answers to these questions will help the employer to judge whether the criteria for disability are satisfied.

Implications: It is somewhat worrying that the EAT is saying that it is not sufficient for an employer to rely on Occupational Health opinion that an employee is not disabled.  Is it not usually entirely reasonable for an employer to leave that matter to a highly qualified expert such as an OH adviser?  Clearly, employers will need to take care not to outsource their ultimate judgement on the legal test of disability to an Occupational Health adviser.  You will of course still need to seek medical advice, but it is important to ask sufficiently searching questions so as to allow you the employer, not the company doctor, to ultimately decide the disability question.

The Court of Appeal has given clear practical guidance to employers on this point: when asking occupational health questions that might help inform a view that an employee is or is not disabled, employers must ask specific practical questions directed to the particular circumstances of the alleged disability.