In order for a worker to pursue a claim for disability discrimination they have to be disabled as defined within the Equality Act 2010. In addition to this, it is necessary for the employer to have knowledge of that disability – if they did not know and could not reasonably be expected to know of the worker’s disability, then the claim will fail. An employer can acquire knowledge via a number of sources, but most commonly information regarding a worker’s medical condition will be obtained from the worker or from a medical expert, such as Occupational Health. However, what happens if an employer obtains a medical report which states that the worker is not disabled – can the employer simply rely upon that assessment or does the employer need to take anything else into account?

In Gallop v Newport City Council (2013), the Council obtained a number of Occupational Health reports regarding Mr Gallop who had been absent from work with stress and depression. Occupational Health stated within each report that he was not disabled, despite his impairment being long standing. The reports did not give reasons for this conclusion and the Council did not seek clarification, and the Council appeared to dismiss Mr Gallop on the strength of the reports alone.

The Employment Tribunal decided that Mr Gallop was disabled. The issue of whether the Council had knowledge of the disability went to the Court of Appeal. The Court made it clear that when considering advice from Occupational Health or other medical advisers regarding a worker’s medical conditions, employers should not simply rubber stamp the adviser’s opinion. A responsible employer has to make their own judgment as to whether a worker is disabled or not, taking into account all information in their possession, including how long the condition has lasted or may last. In this case the Court concluded that the Council had failed to form its own judgment as to whether Mr Gallop was disabled or not and, in light of all the information available to them, they could reasonably be expected to have had knowledge of his disability.

This approach was recently followed in Donelien v Liberata UK Ltd, which concerned a complicated situation where Ms Donelien appeared to suffer from a number of medical conditions and was absent from work as a result of some of them. It was not clear whether the conditions were related. In addition, there were numerous absences because of such ailments as cold and flu, which were unlikely to amount to disabilities. The employer held numerous meetings with Ms Donelien to discuss her conditions, arranged return to work meetings and made a referral to Occupational Health in order to assist in forming a view as to whether, amongst other things, she suffered from a disability. Occupational Health stated that she was not disabled, which “chimed with the employer’s own experience and impression”, although it was later concluded by the Employment Tribunal that she was in fact disabled. The Employment Appeal Tribunal in this instance, however, was satisfied that the employer had formed its own view in assessing whether Ms Donelien was disabled at the relevant time, stating that it was reasonable for the employer to decide that she was not disabled in light of the steps they had taken and the evidence in their possession.

It can be difficult to establish whether a worker is disabled in order to ensure that you comply with all the obligations which follow from that, and one important step is to seek assistance and guidance from Occupation Health or other medical advisers. It is equally important, however, to remember that you have to form your own judgment as to whether a worker is disabled, taking into account all the information obtained in the course of your investigations. If, for example, a report states that a worker is not disabled, but you have evidence that may suggest otherwise, then it may not be reasonable to simply accept the word of the expert.

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