Knowledge of disability

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It has been long established that in order for an employer to owe a duty to make reasonable adjustments to a disabled employee, the employer must know or be reasonably expected to know that the employee in question suffers from a disability. Without this they do not know that the disabled employee is likely to be placed at a substantial disadvantage.

The difficulty can often arise in the less obvious examples as to whether an employee is disabled for the purposes of the Equality Act 2010 or its predecessor the Disability Discrimination Act 1995. This is often the case with mental illness where the day to day adverse effects may be harder to see from the employer’s perspective. The prudent employer would seek medical evidence before deciding whether or not an employee has a disability for the purposes of the Act as this would impact on the steps they would need to take.

The recent Court of Appeal case of Gallop v Newport City Council however shows that employers need to go further than just obtaining medical evidence. In this case the Claimant suffered from depression brought on by work related stress. The employer commissioned an Occupational Health Report which stated that his condition did not amount to a disability. The Council dismissed him.

Written by
Robin Aston
17th January 2014

His claim for disability discrimination was dismissed at the ET and EAT on the basis that as a result of the Occupational Health Report the employer did not know he was disabled but his unfair dismissal claim was successful.

The Court of Appeal stated that although the employer was right to seek assistance and guidance from a medical expert or occupational health report, the employer cannot merely hide behind the medical report, it must make its own factual judgment as to whether or not the employee is disabled. Employers would therefore be advised to not only seek medical expertise on such issues but also to give detailed consideration of their own to the issues and weigh up all factors before coming to a documented decision.