Court of Appeal rules in disability case

The Equality and Human Rights Commission has welcomed a Court of Appeal ruling that an employer cannot 'simply rubber stamp' an opinion provided by occupational health advisors and must make its own judgment as to whether an employee is disabled.

The case involved Newport City Council and Nigel Gallop, a former technical officer in the grounds maintenance department, who was supported by the Commission.

Mr Gallop, who has depression brought on by work related stress, was dismissed by the Council in 2008 and won £60,000 compensation for unfair dismissal.

However, his claim for disability discrimination was thrown out by the Employment Tribunal and the Employment Appeal Tribunal who agreed that the employer did not know he was disabled because the occupational health advisors had informed them he did not meet the legal definition of disability.

The Court of Appeal rejected this finding and ruled that it is for the employer to look carefully at the nature of the particular impairment and decide for themselves whether the definition of disability is satisfied.

The case will now go back to the Employment Tribunal to decide whether the Council knew or should have known that Mr Gallop met the legal definition of disability and whether he was subject to disability discrimination.

Wendy Hewitt, Equality and Human Rights Commission Legal Director, said:

“We are pleased that the Court of Appeal has closed this potentially serious legal loophole. The duty to make reasonable adjustments for disabled employees is only triggered if the employer knows, or should know, that the employee is disabled.

“The Court gave useful guidance to employers in emphasising the need to ask a medical adviser specific practical questions to provide them with real assistance in deciding this question for themselves.”

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