In Gallop v Newport City Council the Court of Appeal (CA) considered this issue. Mr Gallop had worked for Newport City Council since 1997. In May 2004 he complained of stress, identifying symptoms including lack of sleep and appetite, nausea, headaches, eye strain, tearfulness, comfort eating and an inability to concentrate and cope with simple tasks. He was referred to the Council’s external occupational health (OH) advisers for an assessment for stress counselling. The OH advisers reported in June 2004 that Mr Gallop had ‘stress related symptoms’ but stated that there were no signs of clinical depression. They said that the stress was likely to be work-related and should be discussed with management. He was referred for stress counselling and the Council adjusted Mr Gallop’s workload. However, by August 2005 Mr Gallop became too ill to work and was signed off sick. He returned to work but had intermittent absences for months at a time. He informed the Council that his GP had diagnosed him as suffering from depression and he contended that the stress risk assessment which had been carried out earlier had not been properly implemented.
The Council received further reports from OH advisers who concluded that Mr Gallop was not disabled for the purposes of the then Disability Discrimination Act 1995 (superseded by the Equality Act 2010). In February 2008 Mr Gallop returned to work following a period of absence and complaints of bullying were made against him. The Council dismissed him.
Mr Gallop brought claims for unfair dismissal and disability discrimination (including the failure to make reasonable adjustments). His claims for unfair dismissal succeeded in the employment tribunal and the Employment Appeals Tribunal (EAT) but his claim for disability discrimination failed, in view of the findings of the OH reports. This latter decision was overturned by the CA. The CA firstly stated that an employer cannot be liable for disability discrimination unless it has actual or constructive knowledge of the employee’s disability. It also stated that the relevant knowledge in this context is knowledge of the facts constituting the employee’s disability. The employer does not also need to know that the consequence of those facts is that the employee is, as a matter of law, disabled. Although an employer should seek expert medical opinion it is nevertheless for the employer to make a decision based on all the facts, as to whether the employee is disabled. An employer may not simply rubber stamp an adviser’s opinion.
The case highlights the importance of an employer asking a medical adviser specific practical questions directed to the particular circumstances of the putative disability and not simply asking, in general terms, whether the adviser considers the employee to be disabled. The answers given by the medical adviser will assist the employer in forming a judgment as to whether the employee has a protected disability. In this case, the conflicting medical opinions of Mr Gallop’s own GP and the OH advisers is likely to have been a factor in the decision of the Court. Our advice is that employers should seek legal advice in such cases to ensure that a correct process is followed and that a decision as to whether or not an employee is disabled is made in light of all the relevant facts.