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By Mini Setty

May 1st, 2016

Knowledge of Disability - What If you Just Don't Know?

The Employment Appeal Tribunal (EAT) has held in the case of Gallop v Newport City Council (2015) that a dismissed employee had not been the victim of direct disability discrimination in circumstances where the decision-maker did not have knowledge of the employee’s disability. Although the organisation’s occupational health advisors were aware of the employee’s disability, the EAT confirmed that the knowledge of independent service providers could not be imputed to the decision-maker in disciplinary proceedings.

Background

Mr Gallop was employed by Newport City Council. During his employment, he complained about his excessive workload and said that he was suffering from stress. He was referred to the organisation’s occupational health advisors who identified stress-related symptoms but did not diagnose depression. Over the next few years, Mr Gallop had several absences which occupational health described as ‘stress-related illnesses’. Throughout this period, his employer was informed by occupational health that Mr Gallop was not clinically depressed and was not ‘disabled’ for the purposes of the Disability Discrimination Act 1995, which applied at the time. After a period of absence, Mr Gallop was dismissed for gross misconduct. He subsequently brought claims for unfair dismissal and disability discrimination.

Mr Gallop succeeded in his claim for unfair dismissal. However, in relation to the disability discrimination claim, the Tribunal found that his claim failed because at no material time did the employer know, or ought reasonably to have known, of his disability. Mr Gallop appealed but the EAT upheld the decision.

However, the Court of Appeal overturned the EAT’s ruling. The Court of Appeal held that the Tribunal had erred in accepting this denial of knowledge by Newport City Council because the employer was not entitled to deny having knowledge of an employee’s disability where it had blindly accepted the unreasoned opinion of occupational health that Mr Gallop was not disabled. The factual judgment about whether an employee was disabled was to be made by the employer and it was for the responsible employer to ask occupational health specific questions before applying its own mind to the conclusion. The matter was remitted to a second Tribunal.

Second Tribunal and Appeal to EAT

The second Tribunal dismissed Mr Gallop’s discrimination claims, he appealed again, but the EAT upheld the lower Tribunal’s decision.

The EAT relied on the case of CLFIS (UK) Ltd v Reynolds (2015) and rejected Mr Gallop’s argument that occupational health’s knowledge of his disability should be imputed to the decision-maker in the disciplinary proceedings. In accordance with that case, the EAT held that when deciding whether there had been discrimination by the decision-maker, the Tribunal should focus exclusively on the actual motivation, intention and knowledge of that individual. The decision-maker was solely responsible for dismissing the employee and so there was no room for the imputed knowledge of others in this situation.

For a claim of direct disability discrimination to succeed, the disability itself must be the conscious or subconscious reason for the less favourable treatment by the employer. Consequently, there has to be some evidence that the employer knew about the disability.

In this case, there was no evidence that the decision-maker had actual knowledge of Mr Gallop’s disability or that the decision to dismiss him was influenced by the disability. For this reason, the EAT concluded that Mr Gallop’s claim had to fail.

Comment

Whilst the EAT’s ruling is reassuring for employers that rely on the input of independent service providers, the case also highlights some important points to be aware of:

* The decision only deals with instances of direct disability discrimination. The rules in relation to imputed and constructive knowledge continue to apply with regards the employer’s duty to make reasonable adjustments; and

* Regardless of the ruling, prudent employers should properly consider the reports of their occupational health advisors and be prepared to challenge their opinions and advice when necessary. It is advisable that employers ask specific questions of their agents regarding an employee’s illness and its effects and then form their own judgment as to whether the employee is disabled.

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