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Employment Law Case Update: Gallop v Newport City Council
- AuthorEmployment Team
When is a disability not a disability? And who needs to know? As Gallop v Newport City Council illustrated – it’s not always clear and the confusion can be costly in a tribunal.
Mr Gallop was an employee of Newport City Council and had complained of work related stress. The council’s Occupational Health advisors assessed Mr Gallop and advised he was suffering from a stress-related illness but said he was not disabled because he was not suffering from a depressive illness.
During the following two years Mr Gallop took long periods of absence due to work related stress. The local authority asked the Occupational Health advisors during this time whether the Disability Discrimination Act was applicable to Mr Gallop and were told that it was not. The Occupational Health advisors provided no supporting reasons for this opinion. The local authority did then eventually summarily dismiss Mr Gallop for gross misconduct.
Mr Gallop made a claim for unfair dismissal and disability discrimination. The tribunal found that he was “disabled” for the purpose of the Disability Discrimination Act 1995 but his claim was dismissed on the finding that the local authority didn’t have constructive knowledge of that disability. Mr Gallop appealed this decision. The Employment Appeal Tribunal held that the local authority was entitled to rely on the advice of the Occupational Health advisers.
Mr Gallop appealed once again, which the Court of Appeal allowed on the basis that it was arguable the tribunal had misdirected itself in finding the local authority had no knowledge of his disability. The COA stated the following:-
- To be answerable for disability discrimination against an employee, the employer has to have actual or constructive knowledge that the employee is disabled.
- That knowledge was of the facts constituting the employees disability as identified in the now Equality Act, that a) a physical or mental impairment, which has b) a substantial and long term adverse effect on c) his ability to carry out normal day to day activities.
- Provided the employer had actual or constructive knowledge of those facts, it did not need to know whether as a matter of law that the employee was a “disabled person” as defined by the Act.
The case shows that the employer has to make a factual judgment on whether the employee was disabled rather than relying on an opinion that he was not, despite this coming from external medical advice.
It is common for employers to obtain advice from Occupational Health on matters regarding disability. It is advisable for employers to ask specific questions when seeking advice from Occupational Health and not ask just in general terms. The questions should be directed to the particular practical circumstances of the putative disability. However, employers will then need to focus on what the key factual requirements are for establishing disability and if these are met. If they are, then the employer should proceed on the basis that the employee is disabled, regardless of the opinion from Occupational Health as to whether the employee falls within the definition.
This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.