In Gallop v Newport City Council, the Court of Appeal decided that the employer should not have relied on an occupational health advisor’s unsupported statement that an employee was not disabled for the purposes of the Equality Act 2010.
What does this mean?
Whilst the Court accepted that it can be difficult to decide whether the criteria for disability are satisfied, the Court highlighted that it was the employer’s responsibility to make its own judgement as to whether an employee is disabled. Employers may seek assistance from occupational health advisors but their opinions should be considered alongside any facts of which the employer is already aware. Ultimately the responsibility for determining whether an employee is “disabled” lies with the employer, not its medical advisors.
What should we do?
In its judgment the Court of Appeal provided some guidance to employers. Employers should not rely on only asking general questions to help them decide whether an employee is disabled within the meaning of discrimination legislation. Instead they should tailor their questions for each case and its particular circumstances. This may make it easier for employers to judge whether they believe an employee is disabled and what reasonable adjustments should be made. In addition, employers should not simply take the advice received from medical specialists at face value, but should instead carry out a critical assessment of that advice, the reasons which support it and whether that is consistent with the employer’s own views and experience of the employee’s condition.