Constructive Knowledge and Rubber Stamps

The court of appeal yesterday handed down judgment in Gallop v Newport City Council regarding the question of an employer’s constructive knowledge of disability. The Claimant was supported by the EHRC who were understandably pleased with the outcome. Credit should also go to the Bar Pro Bono Unit who supported in the EAT and in getting permission to appeal.

Mr Gallop was a technical officer  working for the local council. He had exhibited some signs of depression such as, stress, lack of sleep and appetite, tearfulness and difficulty in concentrating. Over the course of about 3 years, these symptoms continued and absences due to them occurred, he was referred to Occupational Health. The ET and EAT had decided that when the council’s occupational health providers had stated that Mr Gallop was not disabled in the course of three reports, the employer was entitled to rely on that to conclusively demonstrate that it did not have knowledge of the employee’s disability when it later turned out that he actually met the definition. The problem with the occupational health reports were that as they were described by Rimer LJ:

Their opinions amounted to no more than assertions of their view that the DDA did not apply to Mr Gallop, or that he was not ‘covered’ by it or words to that effect. No supporting reasoning was provided. As the opinions were those of doctors, not lawyers, one might expect them to have been focussed on whether, from the medical perspective, the three elements of section 1 [i.e. a mental or physical impairment which had a substantial adverse effect on his ability to carry out normal day-to-day activities] were or were not satisfied. Since, however, OH made no reference to such elements, neither Newport nor the ET could have had any idea whether OH considered (i) that Mr Gallop had no relevant physical or mental impairment at all; or (ii) that he did, but its adverse effect on his ability to carry out normal day-to-day duties was neither substantial nor long-term, or (iii) that he did, but it had no effect on his ability to carry out such duties. OH’s opinion was, with respect, worthless. For reasons indicated, Newport had to form its own judgment on whether Mr Gallop was or was not a disabled person; and OH’s views on that topic were of no assistance to them.

Had the EAT been right, the problems that would have been caused by the judgment fell into sharp relief in this case. An employer, deliberately or innocently could have provided inadequate information to a doctor to assess disability in the sense in the Equality Act (or DDA in this case) and then relied upon an inaccurate report to negative its knowledge. Both sides (and the court) in Gallop agreed that for constructive knowledge, it was knowledge of the facts which led to a person being disabled, not whether as a matter of law those facts amounted to a disability which was relevant. That being the case it was difficult to see how a bald statement that a person is not disabled got past facts which the employer already knew about from which they could reasonably known a person was disabled.

In giving permission to appeal, Elias LJ said

…it might be thought surprising if an employer could say we have received advice that an employee is not disabled and rely on that.   I am very curious to see what the outcome is!

It might not have come as much of a surprise therefore that Rimer LJ giving the only reasoned judgment concluded that:

…the employer must not forget that it is still he, the employer, who has to make the factual judgment as to whether the employee is or is not disabled: he cannot simply rubber stamp the adviser’s opinion that he is not.

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