Decision time: employer couldn’t rely on occupational health’s view of disability

The issue in Gallop v Newport City Council was ‘what is required for an employer to have knowledge of an employee’s disability?’ An employer cannot be found to have discriminated (except in certain indirect discrimination cases) unless it knew (or should have known) that the employee was suffering from a disability.

The employee was off work for extended periods between 2005 and 2008 with work-related stress; his GP had since 2006 identified him as having depression. But the employer’s external occupational health advisers gave repeated advice that, despite having a stress-related illness, the employee was not disabled within the meaning of the statutory definition.

The claimant was eventually dismissed in 2008 and claimed unfair dismissal and disability discrimination. The tribunal and EAT both decided that the employer was entitled to rely on the views of its medical advisers and could not reasonably be expected to know that the employee was disabled. On that basis, his claims that he had suffered direct disability discrimination and that the council had failed to make reasonable adjustments for him failed…

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