Should an employer rely on a medical report to assess whether or not an employee is disabled?

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Not necessarily, according to the Court of Appeal in the case Gallop v Newport County Council. It held that it is not enough simply to rely on an occupational health report which stated that the employee was not disabled.

Rather, the responsible employer should make their own judgment as to whether or not the employee is disabled with assistance and guidance from occupational health or other medical advisers.

Background

The issue in the case of Gallop v Newport County Council was whether or not the Council had actual or constructive knowledge of Mr Gallop’s disability after receiving a report from occupational health stating that Mr Gallop was not disabled.

A person is disabled for the purposes of the Equality Act 2010 if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. If an employer has actual or constructive knowledge of an employee’s disability then the obligation to make reasonable adjustments arises.

Mr Gallop commenced employment with the Council in 1997. In May 2004, he sent the Council an e mail saying he was suffering from stress and he was referred to occupational health for stress counselling and his workload was adjusted. In August 2005, Mr Gallop was too ill to work and was signed off sick. The occupational health report stated that Mr Gallop’s stress was work-related but that he did not have a depressive illness. There were other periods of sickness absence and further occupational health reports one of which stated that Mr Gallop was "not covered under the Disability Discrimination Act." There was also a GP’s note which stated that Mr Gallop was suffering from reactive depression. Mr Gallop returned to work in February 2007 but was suspended following allegations of bullying going back to 2005. He was dismissed in May 2007 and then brought claims of unfair dismissal and disability discrimination.

Employment Tribunal and EAT decisions

The unfair dismissal claim was successful. As for the disability discrimination claim, the Employment Tribunal concluded that Mr Gallop had a disability but that the Council did not have constructive or actual knowledge of this. The Council had received continuous, unequivocal advice from its occupational health advisors that Mr Gallop was not disabled for the purposes of the legislation. Unless there was a good reason to come to a different view, the Council was entitled to rely on the advice given by occupational health. The disability discrimination claim was dismissed.

Mr Gallop appealed unsuccessfully to the EAT. It held that despite Mr Gallop’s medical condition, the Council was entitled to rely on the view of occupational health that Mr Gallop did not have a disability. Mr Gallop appealed.

Court of Appeal decision

In December 2013, the Court of Appeal held that the Council should not have denied knowledge of Mr Gallop’s disability by relying simply on its "unquestioning adoption of occupational health’s unreasoned opinions that Mr Gallop was not a disabled person".  The Court of Appeal allowed the appeal stating that even though medical reports and assessments are helpful in coming to a decision, the responsibility ultimately lies with the employer who must apply its own mind in deciding whether an employee is disabled. It cannot simply rubber stamp the advisor’s opinion.

Comment

The Council had obtained several reports from occupational health and those reports were consistent: Mr Gallop did not have a disability. However, the reports did not cover specific, practical questions about each of the elements needed to satisfy the definition of disability. For instance, what was the impairment, was it substantial, how did that impact on normal day-today activities? The decision clearly illustrates the need to carefully draft letters of instruction to medical advisers and to pose practical questions. The answers to such questions will then assist employers in coming to a decision about whether or not an employee has a disability.

Interestingly, the issue of knowledge also came up in the case Cox v Essex County Fire & Rescue Service but with a different outcome. Mr Cox e mailed his employer and stated that he suffered from bipolar disorder. As a result, his employer conducted an investigation by asking relevant questions and seeking advice from a medical expert. Mr Cox was not fully co-operative with the medical expert and did not disclose all of his medical information. Following his dismissal he brought claims for disability discrimination, unfair and wrongful dismissal. 

The Employment Tribunal found that at the relevant time the employer did not know and could not reasonably be expected to know that Mr Cox was disabled. Although he had stated that he suffered from bipolar disorder, there had been no definitive diagnosis of that condition. The disability discrimination claim was dismissed and in October 2013, the EAT upheld that decision.