Newsflash: Disability discrimination – are you in the know?

What do we already know?

We updated you in our December 2013 Newsletter Case update (1): Disability discrimination – are you in the know? on the Court of Appeal’s decision in Gallop v Newport City Council [2013].

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 knew or could have known of the employee’s disability.

What’s new?

The EAT has upheld in the case of Gallop v Newport City Council [2016] (available here) the decision of the (fresh) Tribunal 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.

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.

We’ll look more at this EAT’s decision in our April Newsletter, so watch this space…