16 January 2014

Disability Discrimination: Employer Knowledge of Disability

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 relevant employee is suffering from a disability, and so as a result is likely to be placed at a substantial disadvantage.

However establishing such knowledge on the part of the employer is not always a clear cut exercise. A question posed recently to the Court of Appeal ("CA") in the case of Gallop v Newport City Council concerned whether or not an employer could rely solely on an Occupational Health Report in deciding whether an employee is disabled.

Considering whether an employee is disabled can be difficult, particularly when dealing with mental illnesses. Mr Gallop was suffering from depression brought on by work related stress. Following the result of an Occupational Health Report, which stated that his medical condition did not meet the legal definition of a disability; Mr Gallop was then dismissed from in 2008.

His claim for unfair dismissal was ultimately successful, but his claim for disability discrimination failed both at the tribunal and on appeal, since on both occasions it was decided that employer could rely on the OH Report's conclusion that Mr Gallop was not disabled.

However, on reaching the Court of Appeal, that decision was overturned. The CA confirmed that although an employer should properly seek guidance from medical experts, it is ultimately for the employer itself to decide whether or not an employee is disabled. The Court found that the simple ‘rubber stamping' of such reports was inadequate.

Conclusion
This case makes clear that employers must think for themselves. Whilst making use of medical reports, employers must take a more proactive role in reviewing medical evidence. In particular, medical experts are not legal experts. It is not for them to decide whether or not someone is disabled in law, and therefore employers should be careful about relying on any such pronouncement. Medical evidence is there for the employer to inform itself as to the extent and nature of the employee's condition.

All HR managers should document their engagement with any medical evidence and not necessarily take it at face value. Should a disability discrimination claim later be lodged, such comment may prove invaluable to the employer in demonstrating it did more than merely approve the report. And if still not sure about whether an employee is disabled, then advice should be sought from employment law specialists.