Employers should explore the nature of employee’s disability to work out how it is recognised under the Equality Act 2010, the court of appeal has ruled.
Employers must seek external medical advice, asking specific questions about the circumstances related to the disability.
In the case of Nigel John Gallop v Newport City Council (2013), the employee had periods of sick leave because of work-related stress.
However, he had not been labelled as “disabled” by occupational health advisors because he was not suffering from a depressive illness.
The local authority where Gallop worked asked the occupational health advisors whether the Disability Discrimination Act 1995 was applicable, but were repeatedly told that it was not.
No supporting reasons were given for their opinions, leading the employers to believe that Gallop was not “covered” by the act.
The local authority dismissed him for gross misconduct, which led to an Employment Tribunal for unfair dismissal and disability discrimination.
The tribunal found that he was “disabled” for the purposes of the Act, but Gallop’s claim was dismissed on the grounds that the local authority did not have constructive knowledge of the disability.
Anne de Bono, chair of NHS Health at Work said the case highlights a need for good communication between managers and accredited occupational health specialists.
She said: “Employers need to make sure that they have a competent service with access to specialist occupational physicians for complex cases.
“Reasonable adjustments should be considered for all staff who have significant ill health which is affecting attendance or performance at work – irrespective of whether they think the Equality Act is likely to apply.”