Employers must make up their own minds rather than simply rubber stamping medical opinion
In Gallop v Newport City Council the Court of Appeal had to decide whether a disability discrimination claim can be defended by an employer placing an unquestioning reliance on medical advice that an employee is not disabled. The case was decided under the Disability Discrimination Act 1995, but the principles are essentially the same under the Equality Act 2010.
Facts
Gallop informed the local authority that he was suffering from stress. Efforts were made to adjust his workload, but he was signed off sick and thereafter had long intermittent periods of absence for over two years. During this time two different occupational health advisers stated that he was not disabled within the statutory definition. When he did eventually return to work, he was dismissed following allegations of bullying by other members of staff, who said they would not work with him.
Tribunal and EAT
The employment tribunal rejected Gallop’s claims of direct disability discrimination and failure to make reasonable adjustments. It held that an employer cannot treat an employee less favourably on grounds of disability, unless it is actually or constructively aware (can be presumed to have knowledge) that the employee is disabled. The same principle applied to the duty to make reasonable adjustments - the employer must actually know the employee is disabled, placing that employee at a substantial disadvantage.
This employer had received unequivocal advice from its medical advisers that Gallop was not disabled and was entitled to rely on the advice it had been given. The local authority could not know, or could not reasonably be expected to know, Gallop was disabled. The EAT agreed. Gallop appealed.
Court of Appeal
Gallop’s appeal was upheld. The key issue was whether the employer had actual or constructive knowledge of his condition within the context of the statutory definition of disability (S.6 and Sch1 Equality Act 2010). But the tribunal did not ask that question. It considered the employer was entitled to rely simply on its medical advisers’ unreasoned opinions that Gallop was not disabled. So, the tribunal had erred and so had the EAT.
The CA commented this ruling may seem hard, but the wording of the legislation means employers have to make their own judgment on whether an employee is disabled. An employer will want guidance from its medical advisers, and if the advice is the employee is disabled, that should ordinarily be followed unless the employer has good reason to disagree. If the advice is the employee is not disabled, the employer has to make its own factual judgment: it cannot simply rubber stamp the adviser's opinion.
Comment
An employer cannot unquestioningly accept a medical adviser’s opinion on whether an employee is disabled – it must make its own judgment. Employers seeking medical advice should not simply ask in general terms whether an employee is disabled within the meaning of the legislation, but also ask specific practical questions on the particular circumstances of the disability. The answers will provide real assistance in deciding whether the criteria for disability are satisfied. This practical guidance needs to be incorporated into employers’ standard procedures for seeking medical opinion.
To help employers make their own decision about whether a person is disabled, Appendix 1 of the EHRC Employment Code of Practice, ‘The meaning of disability’, provides an excellent aid to understanding the statutory definition of disability. Paragraphs 5.15 and 6.19 of the Code emphasise the point the CA made about making a factual judgment. It states that employers must do all they can reasonably be expected to do to find out whether an employee is disabled while considering issues of dignity, privacy and confidentiality.
Makbool Javaid is a partner and head of employment law at Simons Muirhead and Burton
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