Disability Discrimination: Knowledge of Disability

07 January 2014

Can an employer rely only on an Occupational Health Report when deciding whether an employee is disabled?

No, held the Court of Appeal in Gallop v Newport City Council.


Daniel Barnett’s Employment Law Bulletin summarises the case:

An employer's duty to make reasonable adjustments for a disabled employee only arises where the employer knows or is reasonably expected to know that the employee is suffering from a disability and, as a result, is likely to be placed at a substantial disadvantage.

Assessing whether an employee is disabled can be problematic, particularly in a case of mental illness. In this case, decided under the previous Disability Discrimination Act 1995, Mr Gallop was suffering from depression brought on by work related stress. Following the findings of an Occupational Health Report, stating that Mr Gallop's medical condition did not meet the legal definition of disability, he was dismissed by the council in 2008. Whilst his claim for unfair dismissal was successful, his claim for disability discrimination failed both in the employment tribunal and the EAT, where it was decided that in view of the findings of the Occupational Health Report, the employer did not know that the employee was disabled.

Overturning the decision of the EAT, the Court of Appeal stated that although an employer should correctly seek assistance and guidance from an Occupational Health Report or other medical expertise, it is for the employer to make a factual judgment as to whether or not the employee is disabled and cannot simply "rubber stamp" an external opinion.