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Employer not liable for direct discrimination in stress case

Direct disability discrimination occurs where an employer treats a disabled person less favourably because of his or her health condition. In the case Gallop v Newport City Council, the Employment Appeal Tribunal had to decide how much actual knowledge of a disability an employer needed in order to be held liable for direct disability discrimination.

Gallop, who worked for Newport City Council, suffered from stress and went off sick on a number of occasions between August 2005 and January 2008. He was then suspended on allegations of misconduct and dismissed in May 2008.

He claimed he had been unfairly dismissed, and that his employer had discriminated against him. He lost his unfair dismissal claim, but he also lost his disability discrimination claim, on the basis that his employer was not aware of his disability. The local authority had relied on an occupational health report which said he was not disabled and had not tried to make any further enquiries. This point went to the Court of Appeal, which said that employers should not blindly follow reports from occupational health advisers.

The case was then sent back to a different employment tribunal to determine whether the employer actually knew, or ought to have known, that Gallop was disabled and, if so, whether it had discriminated against him because of his disability. It decided the local authority did not know Gallop was disabled. Gallop appealed.

A previous case, relating to a failure to make reasonable adjustments to accommodate a disabled employee, had held that if part of an organisation knew about an employee's disability, everyone working for that employer would be considered to have that knowledge. The statutory code of practice confirms that an employer will be considered to have knowledge of a disability, and so will be under a duty to make reasonable adjustments, if one of its ‘agents’ - such as occupational health - knew that employee was disabled.

The EAT in the Gallop case took a different approach, relying instead on a Court of Appeal decision which indicated that tribunals should look at the actual knowledge and motives of the person alleged to have discriminated (here, the manager who decided to dismiss Gallop) when dealing with direct discrimination claims (see CLFIS v Reynolds [2015]). The manager's reason for the dismissal was different to the reason found by the tribunal – but this was not enough to fix the employer with knowledge of Gallop’s disability or to require the employer to prove it had not acted in a discriminatory way. The EAT held that nothing in this case indicated that discrimination had played any part in the decision to dismiss Gallop, and as he had not established that this manager had been aware of his disability, the EAT concluded the employer could not have directly discriminated against him.

Although Gallop had argued in his claim form that his employer had failed to make reasonable adjustments, this was not pursued in his witness statement or elsewhere in the proceedings and, therefore, the EAT decided it did not need to deal with this issue.

This is a useful case for employers faced with claims of direct discrimination and although it was brought under the Disability Discrimination Act 1995, the principles are still relevant under the Equality Act 2010. But it is important to note that these principles do not apply to cases involving an employer’s failure to make reasonable adjustments. If the employer knows, or ought reasonably to know, that someone is disabled, it needs to act on this.

Added: 13-04-2016

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