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Employment Law

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Veale Wasborough Vizards , 01 APR 2016

Discrimination - can knowledge of disability be imputed to decision makers?

Discrimination - can knowledge of disability be imputed to decision makers?
Nick Murrell
Solicitor, Veale Wasbrough Vizards

The Employment Appeal Tribunal (EAT) in Gallop v Newport City Council has held that knowledge of a disability cannot be imputed from one part of an employer organisation to the ultimate decision maker.

The facts

Mr Gallop was suspended on allegations of misconduct and dismissed in May 2008. Prior to his dismissal, he had been absent owing to sickness on a number of occasions for significant periods of time. Mr Gallop's sickness absence was caused by stress relating to the excessive demands of his role with Newport City Council (the Council).

During his absences, Mr Gallop had been referred to the Council's occupational health (OH) department. Although OH advised the Council that Mr Gallop was suffering from stress-related illness, they were of the view that he did not have a depressive illness and would not be considered as disabled for the purposes of equality legislation. This was contradicted by Mr Gallop's general practitioner who diagnosed him with depression.

Direct disability discrimination

Amongst other things, Mr Gallop brought a claim against the Council for direct disability discrimination. The claim was dismissed both by the Employment Tribunal and the EAT on the ground that the Council did not know, and nor ought it to have reasonably known, or Mr Gallop's disability.

This decision was overturned by the Court of Appeal, which found that the Council had been wrong to accept OH's opinion that Mr Gallop was not disabled for the purposes of equality legislation and should have applied its own mind to addressing this question.

The claim was remitted to a fresh tribunal, which again dismissed it. Mr Gallop then appealed to the EAT arguing, amongst other things, that OH knew that he was disabled for the purposes of equality legislation and that OH's knowledge should be imputed to the disciplinary decision makers.

The EAT's decision

The EAT rejected this argument and held that the focus should be on the employee committing the alleged discriminatory acts and on their state of knowledge and state of mind. The EAT confirmed that what has to be addressed is the mental thought process of the decision maker, and not that of those providing information to that person.

The EAT also found that, in any event, there was no evidence that anybody involved in the dismissal process had acted as they had because of Mr Gallop's disability.

Best practice

Although this claim was ultimately dismissed, these cases are fact-specific and will always turn on the knowledge and motivation of the ultimate decision makers. Employers should also bear in mind that this decision was reached in the context of a disciplinary process and should not be confused with employer obligations when managing sickness absence. In sickness absence cases, there is always an onus on the employer to obtain up-to-date medical information.

Furthermore, employers must be mindful that they must generally do all they can reasonably be expected to do to find out if a worker has a disability.

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