The Court of Appeal has overturned findings by the Employment Appeal Tribunal (EAT) in a discrimination case between an employee suffering from work-related stress and his employer, which relied on the advice of its external occupational health advisers.
The issue in Gallop v Newport City Council was to determine what is required for an employer to have knowledge of an employee’s disability.
The court ruled that an employer cannot be found to have discriminated, except in certain indirect discrimination cases, unless it knew, or should have known, that the employee was suffering from a disability.
The claimant in Gallop v Newport City Councilwas absent from work for extended periods between 2005 and 2008 with work-related stress. Since 2006, his GP had identified him as having depression.
But his employer’s external occupational health advisers gave repeated advice that, despite having a stress-related illness, the employee was not disabled within the meaning of the statutory definition.
The claimant was eventually dismissed in 2008 and claimed unfair dismissal and disability discrimination. The Employment Appeal Tribunal (EAT) determined that the employer was entitled to rely on the views of its medical advisers and could not reasonably be expected to know that the employee was disabled.
On that basis, the employee’s claims that he had suffered direct disability discrimination and that his employer had failed to make reasonable adjustments for him, failed.
The Court of Appeal overturned the EAT’s findings, and decided that the employer could not simply rubber stamp its occupational health adviser’s advice, which was simply an assertion, without any reasoning or medical analysis. Instead, it should have formed its own view, in light of its knowledge of the facts, about whether the employee was suffering from a disability.
The court pointed out that, particularly with certain types of disability, it is only if and when a tribunal rules on the issue that it can be known for certain whether the employee does, in fact, suffer from a disability for the purposes of the legislation.
The court also pointed out that the employer should have made its own judgement by asking focused practical questions to the medical adviser to help it form a view, rather than to simply ask the adviser whether the employee was disabled within the meaning of the legislation.
The court made it clear that if an occupational health adviser said that an employee is disabled, the employer will have to respect that view in its dealings with the employee unless there are good reasons to disagree with the assessment.
If, however, the adviser says the employee is not disabled, the employer still has to make its own factual judgment about whether that assessment is correct.
