20 / 1 / 2014 9.21am
In the case of Nigel John Gallop v Newport City Council (2013), the key issue was whether an employer could have actual or constructive knowledge of a disability when it had received advice from medical advisers that the employee was not a “disabled person”.
Mr Gallop had periods of sickness related to work-related stress. The local authority's occupational health advisers assessed him as suffering from a stress-related illness but said that he was not "disabled" because he was not suffering from a depressive illness.
During future periods of absence the local authority asked the occupational health advisers whether the Disability Discrimination Act 1995 was applicable to him (the case pre-dated the Equality Act 2010), and were repeatedly told that it was not. The occupational health advisers did not provide any supporting reasons for their opinions, which amounted to the employers view that Mr Gallop was not "covered" by the Act. The local authority eventually dismissed Mr Gallop for gross misconduct leading Mr Gallop to start Employment Tribunal proceedings for unfair dismissal and disability discrimination.
The tribunal found that he was "disabled" for the purposes of the Act, but his claim was dismissed on the ground that the local authority had not had constructive knowledge of that disability. They also stated that the local authority had been entitled to rely on the advice of its occupational health advisers that Mr Gallop was not disabled within the meaning of the Act.
The case highlighted the need for an employer, when seeking external medical advice, to ask specific questions relating to the particular circumstances of the highlighted disability.
Anne de Bono, Chair of the NHS Health at Work commented:
"Above all this case highlights the need for good communication between managers and accredited specialists in occupational health to avoid litigation.
"Employers need to make sure that they have a competent service with access to specialist occupational physicians for complex cases. Reasonable adjustments should be considered for all staff who have significant ill health which is affecting attendance or performance at work - irrespective of whether they think the Equality Act is likely to apply."
Notes for employers
It is common practice for employers to seek occupational health advice on whether or not employees are “disabled” as defined by the Equality Act. As a result of this judgment, employers will need more focussed advice on whether the key factual requirements for establishing disability are met. If they are, then in order to avoid the risk of discrimination claims, the employer should proceed on the basis that the employee is disabled despite any opinion from occupational health advisers that they do not come within the statutory definition.
NHS Employers provides advice and guidance to employers on how to support employees with mental health conditions. Please see our web pages for more information.