24 March 2016 #Employment
Employee’s dismissal was not direct disability discrimination where decision-maker did not know that the employee was disabled.
In Gallop v Newport City Council the EAT held that in order to determine whether direct discrimination has or has not occurred, the thought process and motivation of the decision-maker should be the focus and importantly whether or not the decision maker personally knew of the disability.
Mr Gallop suffered from stress during his employment at Newport City Council, resulting in his referral to Occupational Health Advisors. In the years following, Mr Gallop was frequently signed off as sick for stress; however this was not considered a depressive illness by the Occupational Health Advisors. Bullying allegations resulted in Mr Gallop’s suspension, consequently resulting in his dismissal. Following his dismissal Mr Gallop claimed he had suffered direct disability discrimination.
Mr Gallop argued that the knowledge of his disability could be imputed from one employee (the Occupational Health Advisors) to another (the dismissing manager), the EAT found however that as there was no evidence that the actual decision-maker’s decision to dismiss was influenced by the employee’s disability. Knowledge of disability therefore cannot be implied, even when other employees in the organisation know of the disability; instead it must be asked whether the decision-maker knew or ought reasonably have known of the disability and whether they were influenced by it in making their decision. Interestingly this decision is contrary to the Equality and Human Rights Commission Statutory Code of Practice on Employment which details that employers are not usually able to defend a disability discrimination claim by asserting a lack of knowledge as to the disability where an employer’s agent or employee has knowledge of the disability.