Gallop v Newport City Council
Firstly, a further update on the first case which created a lot of interest originally when the EAT stressed that employers should not just rely on occupational health reports when deciding whether an employee is disabled or not. The case has now gone through two further stages, as follows.
As a reminder: Mr Gallop was absent for long periods due to work-related stress. The Council's external occupational health advisors confirmed that he was suffering from stress-related symptoms but that, in their opinion, he was not disabled. Mr Gallop returned to work but was later dismissed for gross misconduct following allegations of bullying by other members of staff who refused to work with him. He claimed unfair dismissal and disability discrimination. The tribunal, and also the EAT, accepted that the Council did not consider that Mr Gallop was disabled and therefore did not discriminate against him on grounds of a disability. However, the Court of Appeal overturned their rulings and sent the case back. It stated that whilst an employer should seek assistance and professional guidance from occupational health or a medical practitioner, it is still up to the employer to decide whether the employee is disabled (and ultimately a tribunal in the event of a claim) and it should look at all of the facts, rather than simply "rubber stamping" an external opinion. The tribunal had failed to consider whether the Council knew or ought to have known that Mr Gallop had a disability.
A different employment tribunal then considered whether the Council knew, or should have known, that Mr Gallop was disabled and, if so, whether it had discriminated against him because of his disability. It decided that the Council did not know Mr Gallop was disabled. Mr Gallop appealed. The Employment Appeals Tribunal (EAT) found no indication that discrimination had played any part in the dismissal decision and, as Mr Gallop had not established that the dismissing manager had been aware of his disability, the employer could not have directly discriminated against him.
Wickers v Colchester Visionplus Ltd t/a Specsavers Opticians
The second case concerns an optical assistant at Specsavers, Ms Wickers, who was given warnings for her failure to follow the employer's absence notification procedure, lateness and a dispensing error. During her appraisal, she became distressed and the director holding the appraisal advised her to see a GP. She told him that she was struggling with depression. Unfortunately for the company, he is alleged to have replied that he had no sympathy for "this kind of thing" and that "everyone gets depressed sometimes, you just have to pull yourself together". After this, Ms Wickers had a further number of absences, a further dispensing error and was again late for work. She told the director that the latter was due to having overslept due to her medication (for depression), but the director decided that disciplinary action was merited, and Ms Wickers was told that she was likely to be dismissed. She resigned and claimed disability discrimination.
Her claim succeeded due to the tribunal's finding that the director's comments "trivialised and were dismissive of the claimant's illness ... The suggestion that a person with depression should just 'pull yourself together' is humiliating and offensive." The tribunal also upheld her claims for failure to make reasonable adjustments and harassment.
The agreed settlement was compensation of £7,500, an agreed reference and a payment of £893 in costs.
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