How often have we questioned the advice we receive from medical professionals or occupational health advisers about an employee's condition and their conclusions as to whether that employee is 'disabled' within the meaning of the Equality Act 2010? We are likely to accept their advice – after all, they are medical professionals. However, the Court of Appeal has warned of the importance of not taking such reports at face value but to delve deeper.
In Gallop v Newport City Council, the issue arose as to whether the Council knew that Mr Gallop was suffering from a disability – as defined under the legislation. Mr Gallop was absent from work with work related stress; however, an occupational health report concluded that Mr Gallop's medical condition did not meet the legal definition of disability. Armed with this evidence, the Council dismissed Mr Gallop. Mr Gallop argued he did have a disability and that the Council had discriminated against him. An employment tribunal concluded that Mr Gallop was a disabled person; however, it held the Council had not discriminated against him because it had no knowledge of the disability. Was the Council right to rely on the medical report and conclude Mr Gallop was not disabled?
The Court of Appeal held that although an employer should seek assistance and guidance from a medical practitioner or occupational health, it is for the employer to make a factual judgment as to whether or not the employee is disabled. Employers should not to simply "rubber stamp" the opinion. The case was sent back to the employment tribunal to determine what knowledge the Council had or ought to have had concerning Mr Gallop's disability.
Emma O'Connor, part of the specialist Boyes Turner Employment Team comments;
"This case illustrates the need for employers, when seeking medical advice, not to ask in general terms whether the employee is a disabled person within the meaning of the legislation. Instead, letters of instruction should pose specific practical questions directed to the particular circumstances connected with the condition, the restrictions any condition has on day to day activities and how long such restrictions are likely to last for. The answers to such questions will then provide real assistance to the employer in forming his judgment as to whether the criteria for disability are satisfied."
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.