Many employers rely on the advice of occupational health advisers when trying to determine whether an employee is disabled for the purposes of the Equality Act 2010. This approach is sensible and reflects good practice, but the Court of Appeal in Gallop v Newport City Council has made it clear that employers should not rely unquestioningly on such advice, especially if the opinion of the medical adviser is that the employee is not disabled. After all, it is employers that remain responsible for making the factual judgment as to whether an employee is disabled for the purposes of the legislation.
Employers cannot generally be held liable for disability discrimination under the Equality Act 2010 if they do not know, and cannot reasonably be expected to know, that an employee has a disability. The Equality & Human Rights Commission’s Code of Practice makes it clear, however, that employers are expected to do all they reasonably can to find out if an employee has a disability. This will normally involve seeking advice from an Occupational Health (OH) or other medical adviser, especially if the employee has been taking material periods of sick leave. But to what extent is an employer entitled to rely on this advice, especially if it suggests that the employee is not disabled?
In Gallop, G began working for Newport City Council in April 1997. Between 2004 and 2008, he took a number of lengthy periods of sickness absence as a result of work-related stress. Newport took various steps to assist G including referring him for stress counselling sessions and making adjustments to his role. Throughout this period the advice that Newport received from its external OH advisers was that although G was suffering from work-related stress, he was not disabled for the purposes of the Disability Discrimination Act 1995 (as it was then). However, at no stage did the OH advisers give any basis for their opinion that G was not disabled. They simply said such things as “the provisions of the [Disability Discrimination Act] do not apply in this case in my view”. When G was dismissed in 2008, after allegations that he had bullied other members of staff, he brought claims of unfair dismissal and disability discrimination.
At the initial Tribunal hearing, it was accepted that G had been a disabled person since July 2006 with depression, but the Tribunal held that Newport could not be held liable for discrimination, as it did not know that G was disabled. In the Tribunal’s opinion, Newport had been perfectly entitled to rely on the advice of its external OH advisers that G was not disabled in concluding (at that time) that this was indeed the position. As the EAT came to a similar conclusion G appealed to the Court of Appeal.
The Court of Appeal said that the key question was not what the OH advisers thought, but whether Newport (as G’s employer) had actual or constructive knowledge of the facts constituting G’s disability, i.e. whether G had 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. It said that the OH advice Newport had received was “worthless” and that Newport was not entitled to deny knowledge of G’s disability by relying on its “unquestioning” adoption of the unreasoned opinions of its OH advisers that G was not disabled. According to the Court of Appeal, Newport should have formed its own opinion as to whether G was disabled taking into account the medical advice that it had received but also the evidence of its own eyes as to G’s absence and preceding symptoms.
So where does this leave employers faced with the difficult job of determining whether an employee is disabled for the purposes of the Equality Act 2010? This case does not mean that employers cannot rely on medical advice in such situations. The Court of Appeal acknowledged that an employer will still want to seek assistance and guidance from occupational health or medical advisers when trying to decide whether an employee is disabled. Indeed, it went so far as to say that if the medical advice is that the employee is disabled then, unless the employer has a very good reason to disagree, it should normally respect this in its dealings with the employee. In cases, however, where the advice is that the employee is not disabled, the employer must remember that ultimately it remains responsible for deciding whether or not the employee is disabled. It may well be that the employer it actively makes this decision and does not simply rubber stamp the adviser’s opinion that he is not despite any contemporaneous facts casting doubt over this conclusion.
In order to make the right decision, employers should ensure they are asking the right questions of their medical advisers in the first place. The Court was at pains to make it clear that when seeking advice from medical advisers, employers should not be asking in general terms: “Is X disabled for the purposes of the Equality Act 2010?” They should instead be posing specifying practical questions directed to the employee’s particular circumstances and the definition of disability in the legislation, for example, “What impact do you consider X’s condition has upon his ability to carry out day-to-day activities outside the workplace?”, “What is the expected duration of his incapacity?”, etc.
At first blush this decision may seem a little harsh. After all, Newport did at least seek medical advice and it did ask its OH advisers whether G was disabled. But if an employer could avoid liability under the Equality Act 2010 by simply asking a general question as to whether an employee was disabled and then relying on an unreasoned “no” from a sympathetic OH adviser there would be too much scope for abuse. Employers will not be let off quite so lightly.