Can an employer uncritically rely on an occupational heath opinion to decide whether an employee is disabled? No says the Court of Appeal in Gallop v Newport City Council  EWCA Civ 1583.
An employer cannot be liable for disability discrimination unless they were aware or should have been aware of the disability in question at the time of the claimed discrimination.
Under both the old Disability Discrimination Act 1995 (the DDA) section 1(1) and the new Equality Act 2010 (EqA) section 6(1), a person has a disability if they meet the following criteria (the criteria):
They have “a physical or mental impairment”;
the impairment has an adverse effect on their “ability to carry out normal day-to-day activities”;
the effect is “substantial” and
the effect is “long-term”.
“Long-term” means that it has or is likely to last at least 12 months or the rest of the life of the person affected (Schedule 1 EqA)
Mr Gallop was employed by Newport City Council (the Council) in various roles from April 1997.
In May 2004, Mr Gallop told the Council that he was suffering from stress. The Council referred him to its external Occupational Health Advisers (OH) for an assessment.
In June 2004, OH wrote to the Council saying that Mr Gallop had some “stress related symptoms” related to his work but that there were no signs of clinical depression. OH referred him to stress counselling and the Council reallocated some of his workload. In August 2005 Mr Gallop was signed off work. OH told the Council that he had a “stress-related illness” but not a “depressive illness”.
In November 2005, Mr Gallop returned to work on a phased basis following an agreed ‘return to work’ plan. He worked a temporary assignment until July 2006 when he returned to his normal duties.
In August 2006, Mr Gallop was again signed off work and he lodged a grievance complaining that the Council had inadequately supported him; he also told them his GP had diagnosed him with depression. The grievance hearing took place in September 2006 but Mr Gallop’s complaints were not upheld at this hearing, nor at his appeal hearing in December 2006.
In September 2006, Mr Gallop’s doctor’s certificate diagnosed him with ‘reactive depression’ and he was signed off work for a further four weeks, which was extended in October and November.
A letter from Dr Riley of OH dated 22 November 2006 said that he hoped Mr Gallop could return to work in January 2007 and that “I would confirm that the provisions of [the DDA] do not apply in this case in my view…I do not believe that any of his current medication would limit his day to day activities or his fitness for the post.”
In January 2007, OH said that Mr Gallop was fit to return to work on a phased basis, although Mr Gallop did not in fact return until late February. He was subsequently signed off sick in April 2007 and referred back to OH who said he had depression of moderate severity.
In June 2007, Mr Gallop’s GP wrote to OH saying that he doubted Mr Gallop would be able to return to work in his current role in future. In July and December 2007 OH wrote to the Council advising them of his GP’s opinion and also said that “I do not feel the gentleman is covered under [the DDA]”
In January 2008, the Council invited Mr Gallop to discuss the OH’s latest findings, which he disputed. Following a further letter from OH recommending he was now fit to work, Mr Gallop returned to work in February 2008.
Mr Gallop was suspended for allegations of bullying which went back to 2005 and which led to his dismissal in May 2008.
Mr Gallop brought claims of direct disability discrimination from 2004 until his dismissal, including a failure to make reasonable adjustments.
The Employment Tribunal (ET) decision and Employment Appeal Tribunal (EAT) decision
The ET decided that Mr Gallop was disabled for the purposes of the DDA (the relevant legislation at the time) from July 2006 because the effect of his depression was “substantially adverse on his day-to-day activities from that date” and it lasted at least 12 months from that time.
However, the ET said that having referred Mr Gallop to OH, the Council was entitled to rely on their medical reports that Mr Gallop was not disabled for the purposes of the DDA, unless there was some reason to show that the advice was clearly negligent or did not take account of some important information. The ET said that the Council did not know that Mr Gallop was disabled at the relevant time and therefore could not have discriminated against him because of his disability and did not have a duty to make reasonable adjustments.
The EAT agreed with the ET’s decision based on the facts.
The Court of Appeal (CA) decision
The CA rejected the argument that the Council could rely on OH’s reports. OH had not given any reasons for saying that Mr Gallop was not covered by the DDA and did not refer to any of the criteria mentioned in section 1(1) DDA and therefore neither the Council, nor the ET could say that these criteria were satisfied in relation to Mr Gallop.
The CA said that OH’s opinion in this case was basically “worthless” and that the Council had to make its own decision.
The CA emphasised that it was for the employer, not its advisers, to decide whether the criteria for disability apply to a particular situation. Employers may get medical opinions to assist them, but they should not just ‘rubber stamp’ any opinion given.
This decision is frustrating for employers who to have genuinely sought help to try to determine whether an employee has a disability. However, the CA has sent a strong message which will mean that the employer, whilst it can consider any external medical opinion, must be able to show that it came to its own conclusions based on whether the criteria are satisfied.
The CA suggested that employers should ask more specific, practical, questions of their medical advisers rather than generic questions or legal questions which they are not qualified to answer.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2013. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
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