An employer’s duty to make reasonable adjustments for a disabled employee only arises where the employer knows or is reasonably expected to know that the employee has a disability. Assessing whether an employee is disabled can be difficult, particularly in a case of mental illness. In the recent Court of Appeal case of Gallop v Newport City Council the Claimant was suffering from depression brought on by work related stress.
His employer commissioned two Occupational Health Reports which both stated that Mr Gallop’s medical condition did not meet the legal definition of a disability and therefore he was dismissed without his employer making reasonable adjustments. His claim for disability discrimination failed because it was decided that it was reasonable for the employer to follow the view of the medical experts that the employee was not disabled.
Overturning the decision of the Employment Appeal Tribunal, the Court of Appeal stated that although it was often the right thing to do for an employer to seek assistance and guidance from an Occupational Health Report or other medical expertise, it is for the employer to make a factual judgment as to whether or not the employee is disabled and cannot simply “rubber stamp” an external opinion.
As the Court of appeal commented the result may seem harsh, however, employers should remember that whether or not an employee is disabled for these purposes is a legal test not a medical one and therefore there is a limit to which an employer should rely on an Occupational Health Report when making this decision.
It is therefore a good idea when instructing an Occupational Health doctor for employers not to simply ask in general terms whether the employee is disabled but to pose specific practical questions directed to the particular circumstances of the potential disability. The answers to questions like these will provide real assistance to the employer in forming its judgment as to whether the legal definition of disability is met and will help to show a future Tribunal that the employer has addressed the possibility of the employee being disabled properly. An employer would normally need to seek specialist legal advice on whether the legal definition of a disability under the Equality Act 2010 has been met.
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