Occupation Health Reports – Opinion That Employee Not Disabled Under The Equality Act 2010 Does Not Give an Employer a Defence For Failing To Make Reasonable Adjustments

In the recent case of Gallop and Newport City Council (2013 EWCA) the Court of Appeal decided that an employer cannot simply rely on their Occupational Health adviser’s opinion that an employee is not disabled under the discrimination legislation to avoid liability to make reasonable adjustments.

Under the Equality Act 2010 employers have a duty to make reasonable adjustments for disabled employees. However, this duty only arises where the employer knows or is reasonably expected to know that the employee is suffering from a qualifying disability.

So, liability requires knowledge of such disability on the part of the employer. The employer’s knowledge can be actual or constructive, meaning that knowledge will be presumed by law if it is or would have been obtainable by the exercise of reasonable care.

An employee is disabled for the purpose of protection under the Equality Act 2010 if these elements are established:

• He or she has a physical or mental impairment.

• That impairment has an adverse effect on their ability to carry out normal day-to-day activities.

• The effect is substantial and long term.

Many employers seek Occupational Health (OH) advice and reports on employees and frequently ask whether the employee would be considered as disabled under the Equality Act 2010. If an employer’s Occupational Health adviser states than an employee is not disabled within the meaning of the discrimination legislation many employers might consider that relieves them from any responsibility to consider the matter further. This recent decision underlines the need for employers to consider the question, and their instructions to the advisers, much more carefully.

Facts: Gallop v Newport City Council

Mr Gallop worked for Newport City Council. He told his employer that he was suffering from work-related stress. He was on and off work over a period of time. Occupational Health assessed him as suffering from stress but did not consider him to have a depressive illness. As such, they stated that the Disability Discrimination Act 1995, being the relevant legislation at the time, did not apply to Mr Gallop and twice stated he was not “covered” by disability discrimination legislation.

Mr Gallop’s GP diagnosed him with depression, as a result of work related stress, and he lodged a grievance on the basis that his employer had not taken sufficient steps to ensure his health and safety at work. Following Mr Gallop’s return to work he was suspended and subsequently dismissed as a result of bullying allegations. He then brought unfair dismissal and disability discrimination claims against Newport. He claimed that as he was disabled Newport had a duty to make reasonable adjustments which they had failed to do. Newport argued that they did not know he was disabled and covered by the legislation because OH had stated he was not, so they were not liable and the claim should fail.

Decision

The Employment Tribunal dismissed Mr Gallop’s disability discrimination claims against Newport.The Tribunal decided that unless the employer had a good reason for forming a different view, it was indeed entitled to rely on the report and advice of Occupational Health as to whether or not Mr Gallop was disabled. It went further and held that even if Mr Gallop was in fact disabled under the legislation, Newport could still deny, as they did, having the required knowledge to make them liable to make reasonable adjustments, by adopting their OH opinion without question. The EAT agreed and dismissed the appeal.

The Court of Appeal (‘CA’) disagreed, allowed Mr Gallop’s appeal and sent the case back to the Tribunal for fresh consideration. It decided that the Tribunal had not dealt with the essential question of the employer’s actual or constructive knowledge. It was not sufficient for the employer to simply rely on OH and deny knowledge of the disability, without having carried out their own assessment.

Conclusion

It is worth noting specific factors in the Gallop case that influenced the Court of Appeal in deciding against the employer. The employer had ‘admitted’ that the employee had a mental illness, but went on to deny the application of disability legislation in light of their OH report. The CA was strong in it’s view of the OH report, stating that it was ‘worthless’ in any event for Newport (when it had to reach it’s own decision on whether Mr Gallop was disabled) as the report did not specifically consider and/or apply the elements of the test for deciding a qualifying disability.

This case has serious implications for employers because it makes clear that they cannot simply outsource their assessment and decision-making responsibilities in relation to disability to Occupational Health advisers.

Greater care should also be taken by employers with their instructions to OH adviser’s in these types of cases. The Court of Appeal commented that employers should ask specific and practical questions of their medical advisers in order to establish whether an employee was disabled, not simply whether the employee was disabled for the purpose of the legislation. Any OH adviser should be asked to focus on the elements of the test for establishing a disability, as set out at the start of this article.

This article was written by Alison Downie, Partner, with assistance from Trainee Solicitor Emily Kozien-Colyer.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact Alison Downie or call 020 7404 0606.