Employers managing employees on sickness absence often turn to occupational health ('OH') for guidance on whether an employee comes within the legal definition of a disabled person, but now need to be careful of unquestioningly relying on OH assessments.
Background to the case
The recent case of Gallop v Newport City Council  EWCA Civ 1583 is a salutary warning to employers referring employees on long term sickness absence to OH.
Mr Gallop was employed by Newport City Council ("Newport") from April 1997 until May 2008. During his employment he was absent from work between August 2005 and November 2005 for stress related illness, August 2006 and February 2007 for depression and then reactive depression, and from April 2007 to February 2008 for anxiety and depression. Throughout the periods of absence, Newport obtained medical reports on Mr Gallop from its OH providers. Whilst the OH providers accepted that Mr Gallop's work related stress developed into moderate to severe anxiety and acknowledged that he had been prescribed anti-depressants, they maintained that he did not meet the definition of a disabled person under the Disability Discrimination Act 1995 (the "Act") (now replaced by the Equality Act 2010). However, OH provided no reasoning for this conclusion.
Following his dismissal, Mr Gallop brought various discrimination claims based on his disability in the Employment Tribunal. To be liable for these claims, Newport had to know, or ought reasonably to have known, that Mr Gallop was disabled within the meaning of the Act and, as a result, likely to be placed at a substantial disadvantage. Both the Employment Tribunal and the Employment Appeal Tribunal concluded that Newport were entitled to rely on the medical assessment of its OH providers and that therefore, whilst the Employment Tribunal found that Mr Gallop was indeed a disabled person as of July 2006, Newport did not have knowledge of Mr Gallop's disability and was not therefore liable for any alleged act of discrimination.
The Court of Appeal, however, has taken a slightly different approach. The lack of an explanation by OH as to why they did not believe Mr Gallop came within the definition of a disabled person under the Act meant that Newport had to form its own judgment of whether the definition had been met. The Court of Appeal stated that Newport could not simply deny knowledge by unquestioningly relying on OH's unreasoned opinion. A responsible employer has to make its own judgment as to whether or not an employee is disabled. The case has therefore been sent back to the Employment Tribunal for a rehearing.
What does this mean for employers?
This case does not mean that employers cannot still seek OH assistance and guidance when managing employees on long term sickness absence. However, what it does demonstrate is that, alongside any general questions as to whether OH consider an employee is likely to be disabled, employers need to ask OH specific practical questions on the nature of the employee's illness, its prognosis and its affect on the particular employee in order to use the answers provided to form its own opinion on whether or not the definition of disability has been met.