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Relying on Occupational Health Reports

When an employee is absent from work due to illness for a period of time or they have indicated that they are suffering from a stress related illness, it is not unusual for an employer to refer them to an occupational health adviser to provide an opinion on, amongst other things, whether the employee is disabled within the meaning of the Equality Act 2010.  An employee will be disabled if they have a physical or mental impairment, and that impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

In the case of Gallop v Newport City Council Mr Gallop had complained of stress in 2004 and had been referred to the Council’s external occupational health advisers for an assessment and stress counselling. From then until 2008 when he was dismissed, the Council obtained a number of occupational health reports from two different advisers, who both stated they believed Mr Gallop was not disabled for the purposes of employment law.

Following his dismissal, Mr Gallop made claims against the Council, including for direct disability discrimination and a failure to make reasonable adjustments. Before an employer can be liable for disability discrimination, it must have actual or constructive knowledge of the employee’s disability. The tribunal found that Mr Gallop was disabled from July 2006, but that the Council did not know this and it was not reasonable for it to have known this and referred to the Council’s being entitled to rely on the opinion of the occupational health advisers. Mr Gallop’s claims of disability discrimination therefore failed and he appealed to the Employment Appeal Tribunal (“EAT”), who also agreed with the tribunal’s decision. Mr Gallop then appealed to the Court of Appeal (“CA”).

The CA disagreed with the tribunal and the EAT. It ruled that the question to be asked was whether the Council had actual or constructive knowledge of the relevant facts that constituted the employee’s disability, not whether the Council knew as a matter of law that the employee was disabled. In this case the Council knew that Mr Gallop was suffering from a stress related condition, even though it sought to rely on the occupational health advisers’ report that Mr Gallop was not disabled. The CA held that the tribunal and EAT had made a mistake when it considered that the Council could deny knowledge of Mr Gallop’s disability, simply by unquestionably adopting the opinion of the occupational health advisers. Mr Gallop’s appeal was therefore upheld and his claim was remitted to the tribunal for a rehearing.

This case shows that employers should be careful when relying on the assessment of occupational health or other medical advisers, as the tribunals will expect the employer to make their own judgment of whether an employee is disabled or not. An employer cannot simply “rubber stamp” the opinion of a medical adviser.

Where there is doubt regarding an employee’s disability status, we recommend that an employer seek an appropriate medical opinion. A well drafted letter of instruction to the medical expert, tailored to the particular circumstances of the case, which was recommended by the CA in its judgment, will assist the employer in obtaining the guidance it needs.

For advice on dealing with employee absences and assessing whether employees are disabled, including drafting appropriate instruction letters to medical advisers, contact me on 01952 211025 or at jennifer.gibson@lblaw.co.uk.