Knowledge of an employee's condition

Harmajinder Hayre analyses an Employment Appeal Tribunal ruling in a case which looked at the impact of an employer's knowledge of an employee's condition on disability discrimination.

The Employment Appeal Tribunal (EAT) has upheld a tribunal's decision in Gallop v Newport City Council [2015] that knowledge of disability could not be inferred upon the decision-maker to establish direct disability discrimination. 

The EAT upheld that the dismissal of an employee was not direct disability discrimination as the decision maker did not know he was disabled and the knowledge of the Occupational Health department in relation to the employee's disability could not be inferred upon the decision-maker in the disciplinary process.

The EAT held that when determining direct discrimination, the tribunal should focus on the thought processes and motivation of the decision-maker and whether they personally knew of, and were influenced by, the disability.

The facts

In this case, Mr Gallop was an employee of Newport City Council until his dismissal in May 2008. During his employment, Mr Gallop complained of stress and was referred to occupational health advisers (OH). OH confirmed in writing that Mr Gallop had "stress-related symptoms" but there were no signs of clinical depression.

Over the next few years Mr Gallop was off work and was signed off sick with a "stress-related illness". OH did not consider that Mr Gallop had a "depressive illness", or that he was covered by the DDA 1995, although it gave no explanation for that opinion. 

On his return to work, Mr Gallop was suspended following allegations of bullying, and was subsequently dismissed. 

Mr Gallop brought claims for unfair dismissal, direct disability discrimination and failure to make reasonable adjustments in the employment tribunal. The tribunal upheld his unfair dismissal claim but dismissed his discrimination claims on the basis that at no material time did Newport know, or ought reasonably to have known, of Mr Gallop's disability.

Mr Gallop appealed this decision and in Gallop v Newport City Council (Disability Discrimination: Direct disability discrimination) [2016] UKEAT 0118_15_0403 the EAT upheld the tribunal's decision as Mr Gallop's argument that the knowledge of disability of one employee (in this case, OH) must be known to all employees was misconceived in the context of direct discrimination. The focus should be on the employee committing the alleged discriminatory acts and on their state of knowledge and state of mind and the EAT concluded that there was no room for inferred knowledge in this context.

The EAT held that the tribunal was entitled to conclude that the decision-maker had no actual knowledge of Mr Gallop's disability and there was no evidence that his decision to dismiss was because of an intention or motivation stemming from his disability. There was no evidence that anybody involved in the dismissal process had acted as they had done because of Mr Gallop's disability. 

Comment

Employers must be mindful that for direct disability discrimination to occur, less favourable treatment must be "because of" disability. Since the disability itself must be the conscious or subconscious reason for the treatment, there must be some evidence that the employer knew of the disability. This must be considered when dismissing an employee.

Harmajinder Hayre is a partner and head of the employment team in the Leeds office of Ward Hadaway. He can be contacted on 0113 205 6712 or This email address is being protected from spambots. You need JavaScript enabled to view it..