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Can employers safely rely on medical opinion? Apparently not!
In a recent case [Gallop v Newport City Council] the Court of Appeal had to decide whether a disability discrimination claim could be defended by an employer trusting medical advice that an employee is not disabled.

In this case the employee had informed his employer, Newport City Council, that he was suffering from stress. Efforts were made to adjust his workload, but he was signed off sick and thereafter had long discontinuous periods of absence for over two years. During this time two different occupational health advisers stated that he was not disabled within the statutory definition. When he did eventually return to work, he was dismissed following allegations of bullying by other members of staff, who said they would not work with him.

The employment tribunal rejected the employee’s claims of direct disability discrimination and failure to make reasonable adjustments. It held that an employer cannot treat an employee less favourably on grounds of disability, unless it is actually or constructively aware (i.e. can be deemed to have knowledge) that the employee is disabled. The same principle applied to the duty to make reasonable adjustments - the employer must actually know the employee is disabled.

This employer had received unequivocal advice from its medical advisers that the employee was not disabled and believed it was entitled to rely on the advice it had been given. The employer said that it could not know, or could not reasonably be expected to know, that the employee was disabled. The Employment Appeal Tribunal (EAT) agreed. However, the employee appealed against that finding.

The employee’s appeal was upheld by the Court of Appeal. The key issue was whether the employer had actual or constructive knowledge of his condition within the context of the statutory definition of disability. But the original tribunal had not asked that question. It had considered that the employer was entitled to rely simply on its medical advisers’ unreasoned opinions that the employee was not disabled. So, the Court of Appeal decided that the tribunal had made a mistake and so had the EAT.

The Court of Appeal commented that this ruling may seem hard, but the wording of the legislation means employers have to make their own judgment on whether an employee is disabled. An employer will want guidance from its medical advisers, and if the advice is that the employee is disabled, that should ordinarily be followed unless the employer has good reason to disagree. If the advice is the employee is not disabled, the employer has to make its own factual judgment: it seems it cannot simply rubber stamp the adviser's opinion.

In this particular case it is important to note that the medical advisers had not stated the reasons for their opinion. It therefore seems that an employer cannot unquestioningly accept a medical adviser’s opinion on whether an employee is disabled – it must make its own judgment. Employers seeking medical advice should not simply ask in general terms whether an employee is disabled within the meaning of the legislation, but also ask specific practical questions on the particular circumstances of the disability. The answers will provide real assistance in deciding whether the criteria for disability are satisfied. This practical guidance needs to be incorporated into employers’ standard procedures for seeking medical opinion. It will be interesting to see how the Occupational Health practitioners under the new scheme the government is bringing in for those on long-term sickness will address this issue.
Posted on 19 Nov 2016

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