Disability: are you in the know?

When considering if an employee is disabled, employers should not rely on just one piece of evidence.

In a recent case, an employee who had a variety of problems including high blood pressure and breathing issues brought a claim for disability discrimination against her employer alleging that the employer had failed to make reasonable adjustments. When considering her absences, the employer relied on an Occupational Health (OH) report which stated that the employee was not disabled. The employee was subsequently dismissed.

The Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) both considered that the employer had not discriminated against the employee. The employee appealed citing the case of Gallop.

The Court of Appeal agreed with the ET and EAT, ruling that the employer had not discriminated against the employee because at the relevant time, the employer did not know and could not be reasonably expected to know that the employee was disabled.

In this case, the employer did not rely solely on the OH report; it had also held return to work meetings and received letters from the employee’s GP. This differentiated it from the case of Gallop where an employer simply relied on an OH report.

An employer should try to obtain a medical report in order to further understand an employee’s medical condition when considering whether or not they could be disabled. However, the employer should not solely rely on the OH report and should ensure that it obtains further evidence (which could include obtaining information direct from an employee) so that it can then make a reasoned and informed decision on disability.