Judgment call

Employers only have to make a reasonable adjustment if they know (or could reasonably be expected to know) that the employee was disabled. In Gallop v Newport City Council the Court of Appeal held that, rather than relying on reports from their occupational health advisers, employers must make their own judgment, on the facts, as to whether the employee was disabled. 

Basic facts

Mr Gallop, who had worked for the Council since 1997, told his employers in May 2004 that he was suffering from stress. Although this was confirmed by the Council’s occupational health advisers, they reported that he was not showing any signs of clinical depression. He was given stress counselling and the Council tried to adjust his workload.

In August 2005 he was signed off sick with a “stress-related illness” for which occupational health again recommended counselling. He returned to work a few months later in a different role but went off sick again in August 2006. He was absent on and off with stress-related illnesses over the next couple of years, during which time the Council received further medical assessments confirming that he was not disabled for the purposes of the Disability Discrimination Act (DDA), which was in force at the time. He finally returned to work in February 2008 but was dismissed on 23 May.

Mr Gallop lodged claims for unfair dismissal and disability discrimination, including a failure to make reasonable adjustments.

Tribunal and EAT decisions

At a preliminary hearing the tribunal found that Mr Gallop was a disabled person from July 2006. However, it dismissed his claim of disability discrimination at the full hearing on the basis that the Council did not know he was disabled. Nor could it reasonably have been expected to know given the information it had received from its occupational health advisers. As Newport was entitled to rely on their medical opinion that Mr Gallop was not a “disabled person”, it therefore did not have the knowledge required under the DDA to have to make reasonable adjustments. And the EAT agreed.

Decision of Court of Appeal

Overturning the decision of the tribunal, the Court of Appeal said it had made an error in finding that the employer was entitled to rely “unquestionably” on the “unreasoned opinion” of its occupational health advisers that Mr Gallop was not disabled. The task for the tribunal was to ask whether the Council had actual or constructive knowledge of the facts constituting his disability.

The Court accepted that might seem like a “hard result”, but the law requires the employer to make their own judgment about whether or not the employee is disabled. The employer is also likely to want help in doing this by seeking guidance and assistance from their occupational health or medical advisers.

If those advisers state that the employee is disabled, unless the employer has a good reason to disagree, the employer will ordinarily accept that opinion. However, if the adviser states that the employee is not disabled, then the employer must not forget that it is they who have to make the factual judgment and cannot simply “rubber stamp” the adviser’s opinion.

The Court said that this case illustrated the need for the employer to ask practical questions which were directed at the particular circumstances of the disability. The answers to those questions will then help the employer in coming to their decision as to whether the criteria for disability are satisfied or not.

The Court remitted the discrimination claim for re-hearing.