Disability discrimination: Occupational Health report is not enough
We previously talked about disability discrimination and how if an employee self diagnoses themselves with an illness (be it physical or mental) that doesn’t mean that an employer has to implement reasonable adjustments. Instead they will need to get confirmation from other sources such as the employee’s doctor etc to confirm the knowledge that an employer holds about an individuals illness. That article can be found here. However the idea of employer knowledge can also play to the employees favour as a recent case has confirmed when the Court considered an Occupational Health report.
Under the law an employer has to provide reasonable adjustments for an employee suffering from a disability if they have knowledge of the disability.
Gallop v Newport City Council
The case of Gallop v Newport City Council (A Court of Appeal decision) has held that an employer can not unquestioningly accept the opinion of an occupational health doctor that an employee is not disabled before they decide whether there is a need for reasonable adjustments or not as required under the Equality Act 2010. Within this case the employee was dismissed by the Council but he had been suffering from depression which had been brought on by work related stress. Now at Tribunal and within the EAT they found that he had not been discriminated against because of his disability because the employer alleged that they did not have the knowledge that the employee was suffering from a disability. This decision was based on the fact that Occupational Health had informed the employer that his condition was not that of a disability and they didn’t consider the matter any further than that.
However the Court of Appeal has disagreed with the decision of the EAT and put forward that the employer is not there to just affirm (or rubber stamp) the opinion of Occupational Health. Instead the employer has to make their own judgment on whether the employee is disabled rather than simply accepting occupational health. The employer needs to consider all factors including the nature of the impairment and not just the Occupational health to decide if the definition of disability is satisfied.
It is good practice that once an Occupational Health report has been received then consultation with the employee is undoubtedly the next step. They must have the opportunity to comment on the report (and potentially challenge it if they feel it is incorrect). If the employer fails to consult following the report then it is likely that any claim for unfair dismissal or discrimination has a greater likelihood of being successful.
If you have been suffering a disability and your employer has failed to consider making reasonable adjustments then there may be a claim to be made at tribunal. If this is the case then please do not hesitate to contact us on 0800 014 8727 where one of our team will be able to discuss your situation further. We will be able to advise you on your case and whether it is one that we could assist with on a no win no fee basis.