Dangerous to rely on occupational health assessment of disability

Mr Gallop started working for the council in 1997; in 2004 he complained of stress and was referred to the external occupational health advisers for stress counselling. The report to the council was that there was no sign of clinical depression but, despite the council attempting to alter Mr Gallop’s workload to account for his stress related systems, he became too ill to work and was signed off sick in August 2005. Intermittent absences followed, during which he attempted unsuccessfully to return to work. The council received several reports from two different occupational health advisers, both of which offered the opinion that they considered he was not disabled. When he was dismissed, after his return to work, following complaints of bullying made against him by other colleagues, he brought claims of direct disability discrimination and failure to make reasonable adjustments.

The Tribunal dismissed his disability claim on the basis that the employer could successfully adopt the ignorance defence in section 4A (3) DDA now paragraph 20(1) of schedule 8 to the Equality Act. It held that the council was entitled to rely on the advice of the occupational health advisers and this decision was endorsed by the EAT. The Claimant appealed to the Court of Appeal.

The Court of Appeal, while acknowledging that the employer must have actual or constructive knowledge of disability before being able to be responsible for dealing with it, noted that the Tribunal had not considered whether the employer had actual or constructive knowledge of the relevant facts, which may or may not, of themselves, determine whether the individual was disabled. The Tribunal had simply considered whether or not the employer knew of the disability and hold that it was entitled to rely on the occupational health advice. The Court of Appeal held that this was an error of law and that the council should have formed its own view on the relevant facts and not merely relied on the occupational health opinion. The discrimination claims were remitted for rehearing.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.