3 May 2016

Decision-maker must have actual knowledge of employee’s disability.

The Employment Appeal Tribunal (EAT) has confirmed that, in the context of direct discrimination, a decision-maker should not be deemed to have knowledge of an employee’s disability simply because the employer’s occupational health department held that knowledge. The relevant consideration in these circumstances is the knowledge actually held by the decision-maker at the relevant time.

Background

There are various categories of disability discrimination proscribed by the law – some require the employer to be aware (or that they ought reasonably to have been aware) of the worker’s disability before they can be held liable. The duty to make reasonable adjustments falls into this category, as does discrimination ‘arising from disability’ (that is, treating someone unfavourably and without objective justification because of something that is a consequence of their disability – for example, persistent absence).

The legislation is silent when it comes to direct discrimination – that is, treating someone less favourably because of their disability (for example, based on stereotypical views) – although it has always been difficult to see how an employer could do that if it did not know that the worker was disabled.

In Gallop v. Newport City Council, Mr Gallop complained to his employer of stress on a number of occasions. He was referred to the Council’s occupational health department for an assessment, which determined that he was suffering from a ‘stress-related illness’ but it did not amount to a disability. This was accepted without question by the Council. Mr Gallop was signed off sick on numerous occasions as a result of his stress-related illness. He was eventually dismissed following disciplinary proceedings in relation to allegations of bullying that were made against him.

Mr Gallop brought claims for unfair dismissal, direct disability discrimination and failure to make reasonable adjustments. The Employment Tribunal agreed that Mr Gallop had been unfairly dismissed, but decided that no discrimination had occurred on the basis that the individual who dismissed him did not know, and could not reasonably have known, that he was disabled.

The case went up to the Court of Appeal, which overturned this decision. It determined that the Council should not have simply taken the occupational health report at face value and should have instead formed its own view based on the advice received. The Court of Appeal ordered that the discrimination claims be re-heard by a fresh Employment Tribunal. Mr Gallop’s discrimination claims were again dismissed, on the basis that there was no evidence to suggest that the chair of the disciplinary proceedings had any knowledge of Mr Gallop’s disability (and therefore could not have been influenced by it).

Mr Gallop appealed this decision to the EAT.

EAT decision

The EAT dismissed the appeal.

Mr Gallop argued that, because the Council’s occupational health department knew or ought to have known that he was disabled, all other Council employees (including the chair of the disciplinary hearing) should be deemed to have ‘imputed knowledge’ of it.

The EAT decided that the focus should not be on the state of mind or motivation of individuals who are not involved in the decision to dismiss (such as, in this case, occupational health). Instead, the focus should be on the actual motivation, intention and knowledge of the decision-maker(s). Therefore, if a decision-maker was not actually aware of the employee’s disability, it follows that the disability cannot possibly have influenced their decision to dismiss; thus there can be no direct discrimination.

The EAT also considered the Equality and Human Rights Commission’s Code of Practice. This document seems to suggest that knowledge can be imputed from employees in one part of an employer’s business to those in another. However, the EAT in this case was clear that the Code of Practice contains only practical guidance and does not establish a generally applicable principle of law.

Comment

It is important to note that the principle established in this case applies only to direct disability discrimination. It does not apply to the duty for employers to make reasonable adjustments (where knowledge can, in certain circumstances, be imputed to all employees of a business).

Despite the fact that this judgment is, on the face of it, helpful for employers, it remains good practice for a medical opinion to be sought in appropriate circumstances and for this to be shared (with due regard to confidentiality and having obtained the employee’s consent) with a decision-maker in any disciplinary proceedings. Direct discrimination is a fairly narrow category and a failure to obtain (or scrutinise carefully) medical guidance may not assist an employer in defending other types of disability discrimination claim.

The EAT’s decision is also a useful reminder of the principle emphasised by the Court of Appeal earlier in the litigation: namely the need for an employer to pose specific practical questions to medical advisers directed to the particular circumstances of the potential disability, rather than simply asking them whether or not a particular employee is disabled. The answers to such questions should then guide the employer in forming its own judgment as to whether the criteria for disability are satisfied.

It is possible that Mr Gallop will seek to appeal this decision further – watch this space!