Gallop v Newport City Council

The Court of Appeal allowed Mr Gallop's appeal against the Employment Tribunal's dismissal of his disability discrimination claims. The central legal principle is that an employer must have actual or constructive knowledge of the facts constituting an employee's disability as defined by section 1 and Schedule 1 of the Disability Discrimination Act 1995 (a mental or physical impairment which has a substantial and long-term adverse effect on normal day-to-day activities). The court held that the Employment Tribunal erred by treating unreasoned occupational health opinions that the employee was "not covered" by the DDA as sufficient to negative the employer's knowledge. The correct inquiry is whether the employer knew (or should have known) the constituent facts, not whether it knew the legal conclusion that the employee was a "disabled person".

The court remitted the discrimination claims to the Employment Tribunal for rehearing because the ET had not made findings as to the employer's actual or constructive knowledge of the section 1/Schedule 1 facts. The court also emphasised that employers seeking clinical advice should ask specific practical questions about the relevant factual elements of disability.

Background and parties:

• The claimant, Nigel John Gallop, brought claims of direct disability discrimination and failure to make reasonable adjustments under the Disability Discrimination Act 1995 against his former employer Newport City Council. He also brought an unfair dismissal claim (not in issue on this appeal).
• Procedural history: a pre-hearing review in the Employment Tribunal found that Mr Gallop was a "disabled person" from July 2006 to his dismissal in May 2008. The Employment Tribunal later dismissed the disability discrimination claims on the basis that Newport did not have the requisite knowledge of disability because its occupational health advisers had advised that Mr Gallop was not covered by the DDA. The Employment Appeal Tribunal upheld that dismissal. The Court of Appeal heard this appeal.

(i) Nature of the claim / relief sought:

• Claims were for direct discrimination and a failure to make reasonable adjustments under the DDA. Mr Gallop sought a remedy through the Employment Tribunal; on appeal he sought a finding that Newport had knowledge (actual or imputed) of his disability and a remit for the ET to determine discrimination on that basis.

(ii) Issues framed by the Court:

• Whether the employer's knowledge requirement is satisfied by knowledge of the constituent factual elements of disability (impairment, substantial and long-term adverse effect on day-to-day activities), or whether an employer must know the legal classification that the employee is a "disabled person" under the DDA.
• Whether an employer can rely on occupational health advice that the employee is not a "disabled person" so as to defeat a knowledge-based discrimination claim, particularly where that advice was unreasoned.

(iii) Court's reasoning and conclusion:

The Court of Appeal held that the required knowledge is of the facts constituting disability (the three elements in section 1 and Schedule 1), and an employer need not know the legal characterisation of those facts as a "disabled person". The ET had misdirected itself by accepting that Newport could avoid knowledge simply because its occupational health advisers stated, without reasoning, that the DDA did not apply to Mr Gallop. As those medical opinions did not set out which factual element (if any) was not satisfied, they were of limited assistance. The employer remains responsible for forming its own factual judgment and should ask specific practical questions of clinicians to obtain reasoned answers on the relevant factual elements. Because the ET did not make the necessary findings about Newport's actual or constructive knowledge, the Court of Appeal allowed the appeal and remitted the discrimination claims for rehearing.

Appeal allowed. The Court of Appeal held that the Employment Tribunal erred in law by treating unreasoned occupational health opinions that an employee was "not covered" by the DDA as sufficient to negate the employer's knowledge of the factual elements of disability. The correct approach is to ask whether the employer had actual or constructive knowledge of the facts constituting the disability (impairment, substantial and long-term adverse effect on day-to-day activities). The case was remitted to the Employment Tribunal for rehearing so that it can make findings on the employer's knowledge and then determine the discrimination claims.

Employment Tribunal (Cardiff): pre-hearing review found claimant disabled from July 2006 to May 2008 (PHR judgment 14 July 2009); substantive ET reasons and judgment (sent to parties 14 September 2010) dismissed disability discrimination claims. Employment Appeal Tribunal (UKEAT/0586/10/DM): order dated 19 July 2012 dismissed the claimant's appeal. Court of Appeal: [2013] EWCA Civ 1583 (11 December 2013) — appeal allowed and matter remitted to the ET.