In many cases of disability discrimination, the employer has a potential defence to the claim(s) if it can show that it didn’t know, and couldn’t reasonably have been expected to know, that the employee was disabled.
This is not a universal defence, and in practice applies only to claims of direct discrimination, discrimination arising from a disability and a failure to make reasonable adjustments. However, given that those three types of claim are common in the employment tribunals, establishing a lack of knowledge, or ‘constructive knowledge’, can be helpful. In this context, ‘constructive knowledge’ is where the employer ought to have known about the disability based on the evidence it had.
How then could an employer be expected to know that an employee was disabled and, more importantly, how might it show that it had no knowledge or constructive knowledge?
As alluded to above, much will depend on the information in the employer’s possession. In any circumstances involving an employee with a particular health condition, the recommended approach is to seek a medical opinion on the condition, its effects and its prognosis. That is to help the employer determine whether the employee has an impairment that has a substantial long-term adverse impact on the employee’s ability to carry out normal day to day activities (the definition of a disability in the Equality Act 2010).
One would be forgiven for thinking that an employer would be able to rely on a medical professional’s opinion as to whether the employee is likely to fall within the definition of a disability. However, the reality is not quite that simple, as evidenced by two cases on the subject.
The case law
In Gallop v Newport City Council, a 2016 case, the employer in question obtained an Occupational Health (OH) report on Mr Gallop. The report stated that Mr Gallop was suffering from a stress-related illness, but the OH practitioner went on to say that they did not consider Mr Gallop to be disabled. He was subsequently dismissed following allegations of bullying.
While Mr Gallop was later found to meet the legal definition of a disabled person, both the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) dismissed his disability discrimination claims on the basis that at no material time did the council know, or ought reasonably to have known, of his disability.
However, the Court of Appeal (CA) disagreed, finding that the council should not have relied too simplistically on the OH report when determining whether Mr Gallop was disabled. The CA also said that it is ultimately for a responsible employer to apply its own mind to the test on whether an employee was disabled or not.
That case set the cat among the pigeons at the time, given that many employers will make important decisions on the basis of such OH reports.
In the recent case of Donelien v Liberata UK, a similar set of circumstances arose whereby the employer had to determine whether the employee was disabled. As with Gallop, the employer obtained an OH report that stated that the employee was not disabled. However, the employer also took into account meetings that it had with the employee and letters from their doctor, all of which supported the contention that the employee was not disabled.
Similarly to Gallop, the employee was found to be disabled, but the CA found that the employer could not be found to know that or to have reasonably known it. The difference in the two cases is that the employer took a more reasoned view, on more evidence, before deciding on disability status.
What does this mean?
While Gallop certainly seemed to many to change the goalposts on employer knowledge of disability, it actually served only to clarify that an employer cannot blindly endorse the findings of an OH report without giving the matter some thought or seeking further evidence.
Donelien has cemented that stance, by confirming that an employer who takes a holistic view of all the available evidence when making its decision can defend itself against a claim that it knew or ought to have known that an employee was disabled.
In short, while an OH report is still a valuable tool and will continue to be persuasive in establishing whether an employee is likely to be disabled, employers should keep in mind that an OH report is just one part of the puzzle. Other parts of the jigsaw, such as meetings with the employee, GP reports, consultant reports or any other relevant evidence, must also be pieced together to get a clearer picture.
If you have any questions on any of the issues mentioned in the above article please contact Seanpaul McCahill.