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An Employer cannot merely rely on an Occupational Health Report when deciding whether or not an Employee is disabled.

The Court of Appeal in Gallup v Newport City Council (2013) EWCA Civ 1583 has held that an employer cannot merely rely on an occupational Health report when deciding whether or not an employee is disabled.

The facts of the case are that Mr Gallup worked for Newport city council. He told Newport that he was suffering from stress, with symptoms including lack of sleep and appetite, headaches and nausea. Newport referred Mr Gallup to be assessed by its external occupational health advisers (OH). The OH report found that Mr Gallup had stress- related symptoms but there were no signs of clinical depression. Over the course of the next few years, Mr Gallup was signed off sick, with what OH said was a work- related ‘stress- related illness’ but this was not considered to be a depressive illness.’

OH continued to assess Mr Gallup and found he remained ill. Mr Gallup’s GP also corresponded with OH, saying that he doubted whether Mr Gallup would be able to return to his current job. On two occasions, OH told Newport that it did not believe that Mr Gallup was “covered” under the DDA 1995. No explanation was given for this opinion.

Finally, Mr Gallup was cleared to return to work by both OH and his GP. However, Newport promptly suspended him following bullying allegations. These allegations led to Mr Gallup’s dismissal.

Mr Gallup brought unfair dismissal and discrimination claims before an employment tribunal. The tribunal upheld his unfair dismissal claim but dismissed his discrimination claims. It held that Newport was entitled to rely on the OH advice as to whether Mr Gallup was or was not ‘disabled’ and if the OH advice was that he was not disabled, then even if he were in fact disabled, Newport did not have the requisite knowledge to engage its duty to make reasonable adjustments.

The EAT upheld the tribunal’s judgment. Mr Gallup appealed to the Court of Appeal.

The Court of Appeal upheld Mr Gallup’s appeal and remitted the case back to the tribunal. It was acknowledged that disability cases can be particularly problematic because it is only after a tribunal has ruled on the question that it can be known whether the employee was, in fact, disabled. The court went on to state that employers should be responsible and make their own judgements as to whether the employee is legally disabled. While assistance in the form of occupational health or from other medical advisers will be helpful, if this guidance advises that the employee is not disabled, the employer must remember that it is them, and not the medical advisers who are responsible for making the final factual judgement. The employer cannot simply “rubber stamp” a medical adviser’s opinion that the employee is not disabled.

The Court of Appeal gave the following practical guidance for employers. When seeking advice from external clinicians, employers should not ask general questions about whether an employee is disabled within the meaning of the discrimination legislation. Instead, the employer should ask specific practical questions, directed to the particular circumstances of the employee’s alleged disability. The answers to these questions will help the employer to judge whether the criteria for disability are satisfied.

Clare McDairmant, Solicitor, Just Employment Solicitors

Clare McDairmant, Just Employment Solicitors.

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