Reliance on an occupational health report and disability

In a case involving a local authority, the Court of Appeal has ruled that an employer must not 'rubber stamp' an occupational health advisor's opinion on whether an employee is disabled. Michael Halsey analyses the ruilng.

In Gallop v Newport City Council, the Court of Appeal has held that an employer is not entitled to rely solely on an Occupational Health (OH) report when deciding whether an employee is disabled for the purpose of equality legislation.

Mr Gallop was employed by Newport City Council ("the council") as a technical officer in the grounds maintenance department. The council referred him to Occupational Health ("OH") in 2004 after he complained that he was suffering from stress. His symptoms included lack of sleep and appetite, nausea, headaches, comfort eating and an inability to concentrate. OH gave an opinion that his illness was directly work related but, that they did not consider him to have a 'depressive illness'.

The council made efforts to adjust Mr Gallop's workload but by August 2005 he had become too ill to work and was signed off sick.

Between then and early 2008, Mr Gallop suffered further intermittent absences broken up by unsuccessful attempts to return to work. During this time the council received several reports from two different OH advisers who both stated that Mr Gallop was not disabled for the purposes of the Disability Discrimination Act 1995 (DDA).

On his return to work in February 2008, Mr Gallop was suspended following allegations by colleagues of bullying dating back to 2005. Those allegations ultimately led to Mr Gallop's dismissal on 23 May 2008. He then sought to bring a claim for unfair dismissal and disability discrimination.

As a preliminary issue the Tribunal was asked to determine whether Mr Gallop was disabled within the meaning of the DDA. It concluded that he was.

It then fell to the Tribunal, at a full hearing, to decide whether the council had failed to make reasonable adjustments for him. In this regard, the council would not be liable if it did not know or could not reasonably have been expected to know that Mr Gallop was disabled.

The Tribunal concluded that because the council was in receipt of regular and unequivocal advice from medical advisers that Mr Gallop was not disabled for the purposes of the DDA. They were entitled to rely on that advice unless there were good reasons to consider otherwise. The disability discrimination claim was therefore dismissed. This decision was upheld by the EAT.

Mr Gallop appealed to the Court of Appeal. The Court of Appeal concluded that in a case such as this, the task of the Tribunal is to inquire and make findings of an employer's actual or constructive knowledge at the relevant times. By regarding the council's knowledge of Mr Gallop's disability in this case as exclusively governed by OH's opinion the Tribunal had erred.

It went on to say that OH in this case had made no reference to the constituent elements of disability (as it was defined in the DDA) and so neither the council nor the Tribunal could have any idea whether OH considered that Mr Gallop met the legal definition of a disabled person.

Ultimately, it was for the council to form its own judgment on whether Mr Gallop was or was not a disabled person. Although an employer may seek assistance from OH, it must still make a factual judgment based on its own investigations. The appeal was therefore upheld and the claim remitted for rehearing.

Best practice

Whilst this case was decided under the DDA, the requirement for 'knowledge' (be it actual or constructive) is equally a requirement for to the duty to make reasonable adjustments to arise under the Equality Act 2010. This case illustrates that employers must not rely unquestioningly on medical advice it receives. Ultimately the obligation to consider whether an employee is disabled is for the employer and so it must take an inquisitive approach to medical advice obtained.

With this in mind it is advisable, when seeking medical advice, to pose specific and targeted questions to try to establish whether or not an employee is a disabled person within the meaning of the legislation. Those questions can particularly focus on the constituent elements of 'disability' being a "physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities".

Michael Halsey is a Partner at Veale Wasbrough Vizards. He can be contacted on 0207 665 0842 or This email address is being protected from spambots. You need JavaScript enabled to view it..