It’s a common problem; you have an employee with a medical condition and you question if the condition is a disability. You then obtain a medical report from your occupational health providers. The report says the employee is not disabled, thus, you say, you have no knowledge of disability. Buoyed by this news you think there is no need to make reasonable adjustments and you think the risk of disability discrimination claims has vanished. Or has it?
The issues in the case of Gallop v Newport City Council was whether an employer could rely only on an occupational health report when deciding whether an employee is disabled. The Court of Appeal said it could not.
Assessing whether an employee is disabled can be problematic, particularly in a case of mental illness. In this case Mr Gallop was suffering from depression brought on by work related stress. Following the findings of an occupational health report, stating that Mr Gallop’s medical condition did not meet the legal definition of disability, he was dismissed by the council in 2008.
However, whilst the Court of Appeal noted that seeking assistance and guidance from an occupational health report or other medical expertise was the right thing to do, to unquestionably rely on the report was not. The Court of Appeal said it is for the employer to make a factual judgment as to whether or not the employee is disabled and cannot simply “rubber stamp” an external opinion.
What this means in practice is somewhat uncertain. At the very least obtaining and relying on a medical report does not provide certainty that disability claims would not succeed in the future. It does, however, place a greater burden on employers to be seen to be testing and challenging the evidence before them before accepting it. It therefore appears necessary to ensure employers can evidence a process of testing the reliability of an occupational health report and that it has asked questions around it. In some cases this may mean getting a second opinion or perhaps asking more specific questions of medical experts to see if an employer could be found to have constructive knowledge of a disability. Each case will be assessed on its merits but don’t think a favourable medical report is a ‘golden ticket’ to disregarding disability issues.
For further information, help or advice please contact Tim Davies on 0191 211 7927.