Occupational Health: Are they always right when it comes to disability?
Meredith Hurst Wednesday, February 5, 2014
Gallop v Newport City Council
The case highlights the risks of relying blindly on the opinions of occupational health when it comes to deciding whether someone is disabled at the date of dismissal. This then informs (amongst other things) whether the employer should have made reasonable adjustments.
The claimant suffered from recurrent work-related stress and OH assessed him three times. On each occasion (following periods of absence and recurrences of the condition) the OH doctor was of the view that the provisions of the DDA - as it was then - did not apply to the case. The claimant had a further long period of absence and was considered to be suffering from depression of moderate severity. OH continued to maintain the view that his condition was not a disability despite being unfit for work for the foreseeable future. The claimant apparently did not contest this opinion.
The claimant did eventually return to work but then faced allegations of bullying which led to his dismissal.
The claimant claimed unfair dismissal and disability discrimination. The unfair dismissal claim was successful for reasons not relevant here. The employment tribunal found that the claimant was a disabled person but rejected the disability claims.
The employment tribunal who heard the case at first instance, found that the employer had no knowledge of disability and could not reasonably have had knowledge. The employer was in receipt of continuous unequivocal advice from its medical advisors (who were external advisors) that the claimant was not disabled. The claimant appealed to the EAT. The EAT rejected the claimant's appeal, holding that the employer was entitled to rely upon the advice of OH that the claimant was not disabled.
The claimant appealed to the Court of Appeal (CA). The central question for the CA was whether the employment tribunal had got the law wrong, when it held that the employer did not have knowledge of disability.
The CA held that the employer should not adopt the unreasoned opinions of OH without question. The employer should not assert ignorance of disability by limiting its knowledge exclusively to the content of an OH report, when there are other material facts that may assist its knowledge. This was the case here because OH had simply stated that the employee was not 'covered' by the DDA without properly considering the definition of disability, in other words, whether there was a physical or mental impairment, the adverse effect on normal day-to-day activities, and, whether the condition was substantial and long-term.
The employer must not forget that it is he, the employer who has to make the factual judgment as to whether the employee is or is not disabled. He cannot simply rubber stamp the advisor's opinion that he is not.
Practical issues arising:
- Do not blindly rely on unreasoned views expressed by OH that someone is not 'covered' under the DDA/ Equality Act.
- Pose detailed and practical questions directed to the particular circumstances of the potential disability.
- Focus on the individual elements of the definition of disability when asking question of the doctor.