An employer’s duty to make reasonable adjustments for a disabled employee only arises where the employer knows, or is reasonable expected to know, that the relevant employee is suffering from a disability, and so as a result is likely to be placed at a substantial disadvantage.
However establishing such knowledge on the part of the employer is not always a clear cut exercise. A question posed recently to the Court of Appeal (“CA”) in the case of Gallop v Newport City Council concerned whether or not an employer could rely solely on an Occupational Health Report in deciding whether an employee is disabled.
The present case of Mr Gallop was decided under the old Disability Discrimination Act 1995 legislation, by virtue of his initial claim having been lodged prior to October 2010. Lord Justice Rimer did however state in his leading judgment that the resulting decision will be relevant to the disability discrimination provisions under the Equality Act, and so dealt with questions of more importance than mere historical interest.
Considering whether an employee is disabled can be difficult, particularly when dealing with mental illnesses. Mr Gallop was suffering from depression brought on by work related stress. Following the result of an Occupational Health Report, which stated that his medical condition failed to meet the legal definition of a disability; Mr Gallop was then dismissed from the Respondent Council in 2008.
Mr Gallop’s claim for unfair dismissal was ultimately successful, his claim for disability discrimination failed both at the tribunal of first instance and at the Employment Appeals Tribunal (“EAT”), with it being decided on both occasions that in view of the findings of the Occupational Health Report, the Council employer was unaware that Mr Gallop was disabled.
The CA in overturning the decision of the EAT, confirmed that although an employer should properly seek guidance and assistance from an Occupational Health Report or other correctly obtained medical opinion, it is ultimately for the employer itself to make the factual judgment as to whether or not an employee is disabled. The Court found that the simple ‘rubber stamping’ of such reports was inadequate.
Clearly then the application of this case has interesting ramifications for employers; the idea with this verdict appears to be for employers to take a more proactive role in rendering decisions as relates to their potentially disabled employees. Should this approach be adopted in future cases, all internal HR managers should certainly take note and ensure that comment demonstrating engagement with such Occupational Health Reports is available if needed. Should a disability discrimination claim later be lodged, such comment may prove invaluable to the employer in demonstrating it did more than merely approve the report.
If you have a question in respect of disability discrimination please do not hesitate to contact me for a free consutation on 0113 350 4030 or alternatively at firstname.lastname@example.org.