In Gallop v Newport City Council the EAT considered whether the fact that the employee could show the employer’s Occupational Health department knew of his disability was sufficient to demonstrate that his employer had the requisite knowledge.
During his employment Mr Gallop complained of work-related stress and over the course of a few years was signed off sick. He was referred to his employer’s occupational health advisors on a number of occasions who said that he was suffering from a stress-related illness but did not consider that he had a “depressive illness” or that he was disabled. After a return to work Mr Gallop was suspended and dismissed following bullying allegations.
Mr Gallop succeeded with his unfair dismissal claim but the tribunal originally dismissed his discrimination claims on the basis that his employer did not know of his disability. The Court of Appeal overturned this decision saying that the Council had been wrong to blindly accept OH’s opinion without asking further questions or applying its own mind to the test of disability.
On remittal the tribunal again dismissed the discrimination claims and on appeal the EAT upheld the tribunal’s decision. They said that the dismissal was not direct disability discrimination as the decision-maker did not know that he was disabled. The knowledge of the employer’s Occupational Health department in relation to the employee’s disability could not be imputed to the decision-maker in the disciplinary process. It maintained that the tribunal should focus on the thought processes and motivation of the decision-maker. Knowledge of disability could not be implied to the decision-maker; the tribunal must determine whether they personally knew of, and were influenced by, the disability.
Although this gives comfort to employers in relying on the opinions of their Occupational Health departments there is still some doubt here as to what amounts to clear knowledge. Employers should not take their opinions as gospel and should proceed with caution taking further advice or getting second opinions where disability could be relevant.