The EAT has upheld the Tribunal’s decision in Gallop -v- Newport City Council 2016, holding that an employee’s dismissal was not direct disability discrimination because the decision-maker did not know that the employee was disabled. This was so notwithstanding the fact that the employer’s occupational health department knew of the disability.

Following the Court of Appeal’s decision in CLFIS (UK) Ltd -v- Reynolds 2015the EAT held that the knowledge of one employee in occupational health could not be imputed to all employees of the company. The focus must be on the decision maker committing the alleged discriminatory act, and on his state of knowledge. The Tribunal was entitled to find that the decision maker did not have actual knowledge of Mr Gallop’s disability and as such the decision to dismiss was not taken on the grounds of his disability. This case was decided under the Disability Discrimination Act 1995, but the Equality Act 2010 has very similar wording.

Employers should be aware that this case will not affect existing case law in the context of the duty to make reasonable adjustments, where knowledge may be imputed from the employer’s employee or agent (e.g. an occupational health adviser or recruitment agent) in certain circumstances.