The issue in Gallop v Newport City Council was "what is required for an employer to have knowledge of an employee's disability?"  An employer cannot be found to have discriminated (except in certain indirect discrimination cases) unless it knew (or should have known) that the employee was suffering from a disability.  

The employee was off work for extended periods between 2005 and 2008 with work-related stress; his GP had since 2006 identified him as having depression.  But the employer's external occupational health advisers gave repeated advice that, despite having a stress-related illness, the employee was not disabled within the meaning of the statutory definition.  

The claimant was eventually dismissed in 2008 and claimed unfair dismissal and disability discrimination.  The tribunal and EAT both decided that the employer was entitled to rely on the views of its medical advisers and could not reasonably be expected to know that the employee was disabled.  On that basis his claims that he had suffered direct disability discrimination and that the Council had failed to make reasonable adjustments for him failed.

The Court of Appeal overturned the tribunal and EAT findings and decided that the Council could not simply rubber stamp its OH adviser's advice (which was simply an assertion, without any reasoning or medical analysis); it should have formed its own view, in light of its knowledge of the facts, about whether the employee was suffering from a disability.  In other words, it should have asked itself whether the elements of the test for disability had been met: did the employee have a physical or mental impairment, which had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities?  

The Court pointed out that, particularly with certain types of disability, it is only if and when a tribunal rules on the issue that it can be known for certain whether the employee does in fact suffer from a disability for the purposes of the legislation.  In the meantime, the employer has to make its own judgment.  The best way to do this, as the Court pointed out, is for the employer to ask the medical adviser focussed practical questions to help it form a view, rather than simply to ask the adviser whether the employee is disabled within the meaning of the legislation.

The decision is something of a "heads you win, tails I lose" situation for employers.  The Court made it clear that if an OH adviser says that an employee is disabled, the employer will have to respect that view in its dealings with the employee unless there are good reasons to disagree with the assessment.  If however the adviser says the employee is not disabled, the employer still has to make its own factual judgment about whether that assessment is correct.