Winckworth Sherwood

UK 200 2013 position: 94

Employers should not rely unquestioningly on OH report in deciding whether an employee is disabled

Normally, when an employer finds itself in a situation where an employee is absent for extended periods of time due to health problems, its first port of call is to refer the employee to an occupational health (OH) professional for assessment. The case of Gallop v Newport City Council demonstrates, however, that an OH report cannot be relied on unquestioningly by the employer in deciding whether an employee is disabled within the meaning of discrimination legislation. It is ultimately up to the employer to form its own view, having made thorough enquiries. If the employee is disabled and the employer knows or ought to reasonably know of the disability, the employer is under a duty to make reasonable adjustments to ensure that the employee is not seriously disadvantaged compared with healthy workers when doing their job.

Mr Gallop worked for Newport City Council since 1997. In May 2004, he told the douncil that he was suffering from stress, with symptoms including lack of sleep and tearfulness, and was referred to the council’s external OH advisers for assessment. OH wrote to the council that Mr Gallop had ‘stress-related symptoms’ but that there were no signs of clinical depression. The council made efforts to adjust Mr Gallop’s workload but by August 2005 he had become too ill and was signed off sick…

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