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Employer's knowledge of employee's disability

Employment Law & HR
BG Purple

It might be stating the obvious, but, before an employer can be held liable for failing to make reasonable adjustments to accommodate an employee's disability, it must actually know that the employee is disabled.

In many cases, particularly with physical disabilities, the disability will be obvious.  In other cases, often involving an employee's mental health, the position is less clear cut and it is difficult for an employer to recognise a disability. 

Many employers, in such cases, will seek the advice of occupational health specialists who may be asked whether, in their view, an employee is a disabled person and hence entitled to the protections offered by The Equality Act.  What, however, of the position where an occupational health specialist states that an employee is not disabled, but that employee is later ruled 'disabled' by the tribunal?  Can the employer plead ignorance in such a case? 

That was the situation faced by the employer in the case of Gallop v Newport City Council.  Mr Gallop suffered from depression brought on by work related stress. The Council sought to deal with some of the work pressures faced by Mr Gallop, but he became too ill to work.  The Council then instructed several occupational health reports, all of which stated that Mr Gallop was not a disabled person.  After a failed return to work, Mr Gallop was dismissed and claimed unfair dismissal and disability HR including a failure to make reasonable adjustments.  

Notwithstanding the medical reports, the tribunal concluded that Mr Gallop's illness was so severe that he qualified as a disabled person.  However, while he succeeded in his unfair dismissal claim, the disability HR claim was rejected by both the tribunal and the EAT on the basis that the employer, in light of the medical reports, could not reasonably have been aware of the fact that Mr Gallop was disabled. 

This finding was overturned by the Court of Appeal, who found that the employer could not simply blindly follow the finding of the medical reports and ought to have enquired further and reached its own conclusions as to the state of Mr Gallop's incapacity.  They could not outsource that decision to an external body.  

In many ways, this is a harsh decision on the employer in this case.  It does, however, highlight the fact that the onus in such cases is on the employer to reach a reasonable conclusion based on their own assessment of the employee's condition and its effects, and cannot simply rely on the views of external parties, be they medical experts or indeed legal advisers.

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