Gallop v Newport City Council
The Employment Appeal Tribunal (‘EAT’) has said in this case that knowledge by Occupational Health of a disability cannot be imputed to the employer.
The EAT found, following Court of Appeal's guidance, that knowledge cannot be implied, even where the fact of disability is already known within the organisation. The EAT said that the focus of an employment tribunal's enquiry ought properly to be on the thought-processes and motivation of the decision-maker. The test is: did the decision-maker know of the disability and were they influenced by it? The fact someone else in the organisation knows about the disability, for example occupational health, makes no difference if the decision-maker does not. If the decision maker is not influenced by someone’s disability, because they do not know about it, then there cannot be discrimination.
"This decision conflicts with the European Human Rights Court’s Statutory Code of Practice on Employment which provides that employers will usually not be able to use the knowledge defence to a disability discrimination claim if an employer's agent or employee (such as Occupational Health) has knowledge," explains Employment Partner Kate Fretten. The Guidance is clear that knowledge is not imputed if it is gained by a person providing independent services to a worker, such as counselling.
We wait to see if this goes to appeal to resolve the conflict.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.