13 December 2013 #Employment
This was the finding of the Court of Appeal in the case of Mr Gallop –v- Newport City Council  EWCA Civ 1583.
Mr Gallop had worked for the Council from 1997. He informed the Council in 2004 that he was suffering from stress and identified various symptoms. From this time he suffered from various other episodes, of which the Council were made aware including from his sick notes.
The Council made efforts to adjust his workload and to provide support. The Council also referred Mr Gallop to its external occupational health advisers (OH).
OH met with Mr Gallop on various occasions over the coming years. OH noted at one point that he had a “stress related illness” which was work-related, and later that he had “depression of moderate severity”. However, at no time did OH advise that Mr Gallop was suffering from a disability under the then Disability Discrimination Act 1995, and indeed OH confirmed in November 2006, July 2007 and December 2007 that the provisions of the DDA did not apply in this case. This was despite Mr Gallop’s GP confirming in July 2007 that “it seems pretty clear having seen him over the past few months that he will be unable to return to work.... I am unable to comment on whether he will be permanently incapable of returning to any work in the future, but ... I doubt he will successfully return to work in his current job.”
When Mr Gallop was dismissed because of allegations that he had bullied, he claimed unfair dismissal and direct disability discrimination. The Employment Tribunal found in his favour regarding his unfair dismissal claim. The Employment Tribunal also determined that he was a disabled person from July 2006 onwards. However, both the Employment Tribunal and the Employment Appeal Tribunal held that there was no disability discrimination because the Council had not known and was not expected to have known that Mr Gallop had a disability under the DDA. This was on the basis that OH had advised the Council that Mr Gallop was not disabled and the Council was entitled to rely upon this advice.
Court of Appeal decision
The CoA determined that the Employment Tribunal had misdirected itself in concluding that the Council had neither actual nor constructive knowledge of Mr Gallop’s disability because it had relied on OH’s opinion.
The CoA accepted that this may seem a hard result for the employer. This is particularly so as the employer will only know for certain whether the employer is/was disabled when an Employment Tribunal rules on the matter. The CoA recognised that “In the meantime, however, the responsible employer has to make his own judgment as to whether the employee is or is not disabled.” It was accepted that the employer will want assistance and guidance from occupational health or other medical advisers, but that where the guidance is that the employee is not disabled, “the employer must not forget that it is still he, the employer, who has to make the factual judgment as to whether the employee is or is not disabled; he cannot simply rubber stamp the adviser’s opinion that he is not.”
This is a hard result for employers. Employers have traditionally been able to rely upon an OH report to determine whether an employee was not disabled. However, employers now need to go a step further.
The CoA has at least provided some guidance to employers when seeking advice from clinicians:
The importance of asking the right questions of OH is now more important, as is the need for an employer to review the situation for themselves.