Your employee is sick a lot, mostly stress and related issues. Keen to respect your statutory obligations if you have any, you repeatedly ask your external Occupational Health provider if this means he is disabled. You are repeatedly told that he is not, though without any particular depth of enquiry on your part and without any depth of reasoning at all on that of your OH adviser. At some later point, the wheels come off your relationship with the employee and he sues you for disability discrimination.
Nice try, you think, but to be liable for discrimination I would have had to know that he was disabled, and since the medical input I have is that he was not, I didn’t. Your case to that effect sails smoothly through both the Employment Tribunal and the Employment Appeal Tribunal. It is somewhat to your surprise, therefore, that you are then torpedoed by the Court of Appeal and your precious defence turns over and sinks without bubbles.
If this is a familiar story to you, you were probably a party in Gibbon v Newport City Council ruled upon by the Court of Appeal last week in a decision containing some very helpful pointers to employers seeking to establish whether an employee is statutorily disabled or not. Put shortly:
- You are as employer both entitled and probably obliged to seek qualified medical input into that question in cases of doubt;
- If you are told by someone medical that the employee probably is statutorily disabled, then you will need some very good reason for deciding that he is not;
- But if you are told that he is not disabled, you cannot take that at face value and as the sole determinant of your treatment of him. Whatever the medical advice says, ruled the Court, “the employer must not forget that it is still he, the employer, who has to make the factual judgment as to whether the employee is or is not disabled: he cannot simply rubber-stamp the adviser’s opinion that he is not“;
- To get a reliable medical view, you need to ask specific practical questions about the impact of the employee’s impairment on his daily activities, not just a blanket enquiry as to whether he is covered by the disability legislation. Quite why this is the case is unclear from the Judgment – anyone qualified to be asked whether the employee is disabled in the statutory sense is surely going to know what that definition entails? Perhaps it is because more focused questions would deny the medical adviser the ability to provide the sort of flat and unsupported denial seen in Gibbon without actually (or at least visibly) addressing his mind to that question in any real sense. Here the Court of Appeal described the OH view “with respect” (in the special judicial sense of “with respect”, meaning “Don’t make me laugh”) as “worthless”. The quality and resilience of the employer’s reasoning depends on the quality of the information it has to hand, it said.
- However, “Information”, as Einstein once said about something completely different, “is not knowledge”. If the medical evidence that the employer is not disabled potentially conflicts with what you yourself see of your employee’s behaviours, his absences and his own arguments, then as a minimum you should consider getting a second, informed, opinion on the question.