Employer Wrong to “Blindly Accept” Occupational Health Opinion on Disability

An employer could not blindly accept an Occupational Health adviser’s opinion that an employee was not disabled.

In Gallop v Newport City Council, G told his employer he was suffering from stress, with symptoms including lack of sleep and appetite, headaches and nausea. His employer referred him to its external OH advisers who confirmed he was suffering stress-related symptoms but there were no signs of clinical depression. This opinion was repeated a number of times over the course the next few years when G was signed off sick. On two occasions OH told the employer it did not consider he was covered under the Disability Discrimination Act. After G raised a grievance that his employer was not doing enough to ensure his health and safety at work, G’s doctor signed him off work with reactive depression.

G claimed that his employer had failed to comply with its duty to make reasonable adjustments. His employer claimed that it did not know, and, in view of OH’s opinion, could not reasonably be expected to have known that G was disabled and so the duty did not arise.

The employment tribunal and EAT both held that unless the employer had good reason for forming a different view, it was entitled to rely on OH’s advice as to whether G was disabled. The Court of Appeal disagreed. The tribunal had erroneously considered that the employer could deny knowledge simply by unquestioningly adopting OH’s statement that G was not disabled. Employers must make their own judgment as to whether an employee is disabled and whilst they will usually want assistance from OH or other medical advisers they must remember that they, and not the medical advisers, are responsible for making the judgment. 

This case demonstrates that an employer cannot hide behind a medical adviser's opinion that an employee is not disabled. When seeking a medical opinion, employers should ask the adviser to focus on the key elements of the test for establishing a disability i.e. whether the employee has a physical or mental impairment; whether that impairment has a substantial and long-term adverse effect; and whether the impairment affects the employee’s ability to carry out normal day-to-day activities. They should then come to a view on whether an employee is disabled, based on the answers to those questions.