Most employers would understandably feel that if they have taken specialist advice from Occupational Health, they would be entitled to rely on the advice they have been given. Unfortunately the case of Gallop v Newport City Council  shows that this may not always be correct.
Employers of disabled employees are under a duty not to discriminate against them on the grounds of their disability, and also to make reasonable adjustments to accommodate the disability. The obligations kick in when the employer is aware of the employee’s disability, or at a time when the employer ought reasonably to have been aware of the disability. Under the Equality Act 2010, a person is disabled if they have a physical or mental impairment which has a substantial impact on their ability to carry out normal day to day activities, and the impairment is likely to be long term.
In the Gallop case, Mr Gallop worked for Newport City Council and advised them that he was suffering from stress and that his symptoms included sleeplessness, nausea, loss of appetite and headaches. The Council asked their external Occupational Health adviser to assess Mr Gallop and write a report. Occupational Health concluded that Mr Gallop was suffering from stress related symptoms but that there was no sign of clinical depression. Over the following years Mr Gallop was signed off work on a number of occasions with his GP diagnosing him with depression. Occupational Health still stated that Mr Gallop was not suffering from a depressive illness. Mr Gallop then raised a grievance that the Council were not taking proper care of his health and safety. The Council, which had arranged for some of Mr Gallop’s duties to be removed from him, rejected the grievance. Throughout this period Mr Gallop continued to be assessed by Occupational Health and on two separate occasions they told the Council that he was not disabled, but without any explanation as to why they had reached that conclusion.
Mr Gallop was eventually dismissed, and he brought claims of unfair dismissal and disability discrimination. Newport City Council admitted that Mr Gallop suffered from a mental impairment, but argued that, whilst Occupational Health had advised that Mr Gallop had suffered from work-related stress, he had not been diagnosed with a mental impairment which had a substantial long-term adverse effect on him. Therefore even if Mr Gallop met the definition of disability, it was not something the Council were aware of, nor should they reasonably have been aware.
The Employment Tribunal upheld Mr Gallop’s unfair dismissal claim. In relation to his disability discrimination claim, the Tribunal found that Mr Gallop was disabled, but that unless Newport City Council had good reason for forming a different view, it was entitled to rely on the advice from Occupational Health as to whether or not Mr Gallop was disabled. As the Occupational Health advice was that Mr Gallop was not disabled, then even if he was in fact disabled, Newport City Council did not have the requisite knowledge to trigger the duty to make reasonable adjustments.
Mr Gallop appealed to the Employment Appeal Tribunal (EAT). The EAT upheld the Employment Tribunal’s decision. Mr Gallop appealed to the Court of Appeal.
The Court of Appeal allowed Mr Gallop’s appeal and sent the case back to the Employment Tribunal to consider his discrimination claim. They said that the task for the Employment Tribunal was to decide whether Newport City Council had actual or constructive knowledge of the facts concerning Mr Gallop’s disability. They held that the original Employment Tribunal did not ask itself that question and had simply allowed the Council to deny knowledge of disability by unquestioningly relying on the opinion from Occupational Health. The Court of Appeal said that they would have expected Occupational Health to consider the three elements of the test for disability and to base their conclusions on the answers to these questions: whether Mr Gallop had a physical or mental impairment; if so, whether that impairment has a substantial and long-term adverse effect; and whether the impairment affected his ability to carry out normal day-to-day activities.
This case illustrates that it is ultimately the employer’s responsibility to make the assessment as to whether or not an employee is disabled. In making that assessment it is both acceptable and sensible for the employer to take into account the views of Occupational Health or other medical advisers, but they should not accept that advice blindly. The question of whether an employee meets the definition of disability can be difficult, and if there is reasonable doubt it is often prudent to assume that the employee is disabled and to act accordingly. It is also worth ensuring that medical advice is questioned if it appears not to have adequate reasoning.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).