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          'Ignorance defence' - employers must form their own judgment

          Date: 17 December 2013

          Date: 17/12/2013

          Under the provisions of the Equality Act 2010 an employer can defend claims of disability discrimination on the basis that it did not, and could not reasonably be expected, to know that an employee was disabled.

          To identify whether an employee is disabled,  it is common for employers to refer employees suffering from ill-health to Occupational Health (OH) for assessment. In the recent case of Gallop v Newport City Council the question of whether an employer can rely on the “ignorance defence” was discussed. In this case the employer’s alleged lack of knowledge of disability was based solely upon the unreasoned opinion expressed by an OH adviser, that an employee was not disabled.

          This case concerned a council employee who had several periods of absence due to ill-health (predominantly caused by stress and depression) and who was therefore referred to OH. Over the course of his illness, two separate OH advisers expressed the opinion that Mr Gallop was not disabled, though provided no reasons for reaching this conclusion.

          When Mr Gallop was dismissed and later brought claims for, amongst other things, disability discrimination, the council defended these claims on the basis that it did not have the requisite knowledge of disability as it had relied on the advice received from OH that Mr Gallop was not disabled.

          This defence succeeded at the Tribunal, and at appeal to the EAT; however, these earlier decisions were overturned by the Court of Appeal. The Court noted that whilst an employer cannot be answerable for disability discrimination unless it had knowledge of the disability, the relevant knowledge is of the facts that constituted the employee’s disability, not of whether the employee is disabled as a matter of law. The correct question for the Tribunal should therefore be whether the employer had knowledge of the relevant facts. The Court concluded that the Tribunal had failed to consider this question and had wrongly concluded that the employer could unquestioningly rely on the unreasoned OH opinion. The case was therefore sent back to the Tribunal.

          The Judge noted that employers need to make their own factual assessment as to whether or not an employee is disabled and that, whilst they may be right to seek assistance from medical experts in doing so, they cannot simply “rubber-stamp” another’s opinion.

          This case highlights the need for employers to ask OH to address specific questions about an employee’s condition, and to provide reasons as to why it has reached any conclusion on disability, so that employers can form their own judgment.