Head of Employment Team Mundays LLP
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Companies cannot 'unquestioningly' accept OH if they say a worker isn't disabled

12th Dec 2013
Head of Employment Team Mundays LLP
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A judgment this week from the Court of Appeal in the case of Gallop v Newport City Council held that employers cannot simply ‘unquestioningly’ accept the opinion of an occupational health practitioner that an employee is not disabled.

This case reminds employers that, although at the end of the day only an Employment Tribunal can determine whether an employee is disabled, a reasonable employer must make up their own mind on this issue based on the facts presented to them.

Mr Gallop had been dismissed by Newport City Council in 2008. He suffered from depression brought on by work-related stress and he initially lost his claim for disability discrimination as the Employment Tribunal and EAT accepts the Council’s defence that they did not know nor could they have been reasonably expected to know that Mr Gallop was disabled.  This was on the basis that their occupational health practitioner had advised them that Mr Gallop’s condition was not classified as a disability.

Persistent short-term and long-term absence can cause real problems in the workplace, although it’s never just as simple as getting rid of the absent employee and replacing them with another.  Although capability (in this case, incapability due to ill-health) is one of the potentially fair reasons for dismissal, case law has held that when dealing with sickness absence, "sympathy, understanding and compassion" is the order of the day.  And of course, as in Mr Gallop’s case, you may have a duty to make reasonable adjustments if the employee is disabled under the Equality Act 2010.

In the first instance and amongst other things, you’ll need to ascertain the nature of the employee's illness, the prospects of the employee returning to work and the likelihood of the recurrence of the illness.  In order to do so, you will need to obtain an up-to-date medical opinion and this is commonly done by obtaining an occupational health (OH) report.  But as any decision made by the employer (to dismiss or otherwise) is a managerial one, not a medical one, how far can you rely on the report? The answer given through the Court of Appeal’s judgment is that, while the facts set out in an OH report can form the foundation of your decision, your must make up your own mind whether you consider an employee to be disabled.

So what can employers take away from this week’s judgment?

  • It’s essential to ask an OH adviser a series of specific questions focussed on the particular circumstances of the employee’s medical condition.  The OH response will then help you decide whether you consider the employee to have a disability.  Without doing so, you could never assert ignorance (on the basis that you did not know and could not reasonably have been expected to know that an employee is disabled).
  • Once you have that OH report, do remember that consulting with the employee must be your next step.  They must have the opportunity to comment, suggest and challenge the report and your proposed reaction to its content.  In the absence of consultation, the success of a claim for unfair dismissal and possibly disability discrimination will be almost guaranteed.

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