Gallop v Newport revisited – Occupational Health reports and knowledge of disability

The case of Gallop v Newport City Council has returned to the Employment Appeal Tribunal (EAT) recently for further consideration of the extent to which an employer can rely upon an Occupational Health report when deciding if an employee is a disabled person.

Facts

The Claimant was absent due to stress and depression. He returned to work but was dismissed following allegations of bullying which included a deputation of trade union representatives informing his employer that his colleagues were not prepared to work with him. He brought claims of unfair dismissal and disability discrimination.

The Court of Appeal decision in 2014

This case came before the Court of Appeal (CA) in 2014. The CA held that the Council could not “rubber stamp” the Occupational Health adviser’s opinion on whether the Claimant was a disabled person. Instead the employer was obliged to ask specific practical questions directed to the particular circumstances of the case. The CA remitted the case back to a fresh ET to consider whether the Council had actual of constructive knowledge of the Claimant’s disability.

The Employment Appeal decision

The ET decided that the Council did not and could not know that the Claimant was a disabled person. The Claimant appealed to the EAT. He argued that the knowledge of one employee (in this case, occupational health) could be imputed to another (the dismissing officer).

The EAT, in the most recent decision, dismissed the Claimant’s appeal, holding that there was no room for imputed knowledge in this context following the decision in Canada Life v Reynolds [2015] IRLR 562 (CA). The EAT held that the ET had been correct to focus on the person solely responsible for the decision to dismiss, and the Claimant had not challenged these witnesses when they gave their evidence. The suggestion that the deputation may also have been motivated by the Claimant’s disability was made late in proceedings. The EAT decided that neither suggestion was supported by the evidence.

Conclusion

This decision will assist employers dealing with Occupational Health reports. Canada Life dealt with the situation where a manager who does not have a discriminatory motive receives ‘tainted information’ from a colleague, which may be discriminatory. This case extends that principle to a situation where a manager may be more reliant on the information they get, given Occupational Health’s expertise on issues of health and disability, and the fact they may be independent if not impartial.  However, this does nothing to water down the need for employer’s to address the issue of disability clearly, examine any medical reports, and challenge the advice they receive when necessary.

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