Can knowledge be imputed?

Employers can defend disability discrimination claims (at least in the context of direct discrimination) on the grounds that they did not know, nor could they reasonably have been expected to know, that the person had a disability. In Gallop v Newport City Council, the Employment Appeal Tribunal (EAT) has ruled that knowledge of disability in one part of an organisation cannot be imputed to the organisation as a whole.

Basic facts

Mr Gallop suffered “stress-related illness” on and off from 2004 until he was dismissed in 2008. During that time the Council received a number of medical assessments confirming that he was not disabled for the purposes of the Disability Discrimination Act, which was in force at the time. After returning to work in February 2008, he was dismissed on 23 May.

Mr Gallop brought claims of unfair dismissal and disability discrimination, including a failure to make reasonable adjustments. The tribunal found that he was a disabled person from July 2006 but dismissed his claim of disability discrimination 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. Instead it found that the reason he was dismissed was because his colleagues made clear, in a deputation to management, that they could not work with him.

The EAT agreed but the Court of Appeal held that the tribunal was wrong to find that the employer was entitled to rely “unquestionably” on the “unreasoned opinion” of its occupational health advisers that Mr Gallop was not disabled. It therefore remitted the claim for a re-hearing.

Tribunal decision

The tribunal dismissed Mr Gallop’s discrimination claim. He appealed to the EAT on the basis that it should be possible to impute knowledge of disability in one part of an organisation (occupational health) to another part of it, which was unaware of it. He also argued that the tribunal should have ruled that the deputation by his colleagues to management amounted to harassment.

EAT decision

The EAT dismissed his appeal, holding that there was no authority for the proposition that knowledge of disability in one part of an organisation can be imputed to the organisation as a whole. On the contrary, it was clear from the case law that if one person made the decision to dismiss it is their state of mind (and not the state of mind of those providing the information) which is relevant.

Consequently the tribunal was right to focus on the intention, motive and knowledge of the person who made the decision to dismiss Mr Gallop. Likewise it was right to refuse to impute the knowledge of disability of the Occupational Health Department to him. In any event there was no evidence that anybody involved in the dismissal process had acted as they had because of Mr Gallop’s disability.

Finally, as Mr Gallop had not challenged the evidence of the managers involved in the disciplinary procedure and its aftermath nor the evidence of the members of the deputation in his original claim, the tribunal could not be blamed for not dealing with a case that was never advanced to it.