Gallop v Newport City Council

An employer incurs liability for disability discrimination only if it has actual or constructive knowledge of the facts constituting the employee’s disability. The employer need not appreciate that those facts satisfy the statutory definition as a matter of law.

Medical advice may assist the employer, but the employer must form its own judgment. It cannot establish lack of knowledge merely by adopting an occupational health adviser’s unreasoned assertion that the employee is not disabled. Employers should ask clinicians specific practical questions about the impairment, its substantial and long-term effects, and its impact on normal day-to-day activities.

An employment tribunal found that the appellant employee had been disabled by depression from July 2006. It nevertheless dismissed his claims for direct disability discrimination and failure to make reasonable adjustments. The tribunal held that the respondent employer lacked the required knowledge because its occupational health advisers had repeatedly stated, without supporting reasons, that the employee was not covered by the Disability Discrimination Act 1995.

The Employment Appeal Tribunal upheld that decision. The employee appealed. The central issue was whether an employer could establish lack of actual or constructive knowledge by relying upon an occupational health adviser’s unexplained conclusion that the employee was not disabled.

1. Appeal allowed. The employment tribunal had applied the wrong legal approach when deciding whether the employer possessed the knowledge required for direct disability discrimination and the duty to make reasonable adjustments. The Employment Appeal Tribunal was wrong to uphold that approach.
2. The required actual or constructive knowledge concerns the facts constituting disability under section 1(1) and Schedule 1 to the Disability Discrimination Act 1995. Those facts comprise a physical or mental impairment which has a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities. An employer possessing knowledge of those facts need not also know that their legal consequence is that the employee is a disabled person.
3. The occupational health advisers had provided only unexplained assertions that the Act did not apply or that the employee was not covered by it. They did not address the individual statutory elements or explain which element was considered absent. Their conclusions were therefore worthless for determining whether the employer knew or ought to have known the underlying facts.
4. Responsibility for deciding whether the employee is disabled remains with the employer. Medical advice may provide assistance and guidance, and an employer will ordinarily respect properly reasoned advice unless there is good reason to disagree with its basis. The employer cannot, however, simply rubber stamp an adviser’s opinion that the employee is not disabled.
5. When obtaining clinical advice, an employer should ask specific practical questions directed to the employee’s circumstances and the statutory criteria. A general question asking whether the employee is disabled is insufficient to provide dependable assistance.
6. Paragraph 2 of the Employment Appeal Tribunal’s order and paragraph 2 of the employment tribunal’s judgment were set aside. The disability discrimination claims were remitted to the employment tribunal for rehearing. Sir John Mummery and Longmore LJ agreed with Rimer LJ.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 1583, the court allowed the employee’s appeal, set aside the relevant parts of the orders below and remitted the disability discrimination claims to the employment tribunal for rehearing.
2. Employment Appeal Tribunal: The tribunal dismissed the employee’s appeal. It held that the employer was entitled to rely upon repeated occupational health advice that he was not disabled and therefore lacked the necessary knowledge.
3. Cardiff Employment Tribunal: The tribunal dismissed the claims for direct disability discrimination and failure to make reasonable adjustments because the employer lacked actual or constructive knowledge of the disability. An earlier pre-hearing review had found that the employee was disabled from July 2006 until his dismissal.