Gallop v Newport City Council

Gallop v Newport City Council [2013] EWCA Civ 1583

Facts

Nigel John Gallop was employed by Newport City Council ("Newport") from April 1997, eventually becoming a technical officer in February 2004. From May 2004 onwards, Mr Gallop experienced periods of ill health, reporting symptoms of stress, lack of sleep, nausea, headaches, and inability to concentrate. He was repeatedly signed off work due to a "stress related illness" and later diagnosed by his GP with "reactive depression". Newport referred Mr Gallop to its external Occupational Health Advisers ("OH") multiple times for assessment. OH consistently advised Newport that while Mr Gallop suffered from stress or anxiety and depression, he was not disabled for the purposes of the Disability Discrimination Act 1995 (DDA). Mr Gallop lodged a grievance in August 2006, complaining that Newport had not taken sufficient steps regarding his health and safety. He returned to work after periods of sick leave but was suspended and subsequently dismissed in May 2008 following allegations of bullying.

Mr Gallop brought tribunal proceedings for unfair dismissal (which succeeded) and disability discrimination, asserting he was a "disabled person" under the DDA. At a pre-hearing review, the Employment Tribunal ("ET") determined that Mr Gallop was "disabled within the meaning of the [DDA] from July 2006 until the date of termination of employment in May 2008". Newport had conceded at this stage that Mr Gallop's impairment had substantial adverse effects on his day-to-day activities from July 2006. However, the ET in the substantive hearing later dismissed Mr Gallop’s disability discrimination claims, concluding that Newport could not be regarded as having the requisite knowledge of his disability because it had relied on the unequivocal advice from its OH advisers that he was not disabled. The Employment Appeal Tribunal ("EAT") upheld this decision, stating that Newport was entitled to rely on OH's advice. Mr Gallop then appealed to the Court of Appeal.

Held

The Court of Appeal (Civil Division) allowed Mr Gallop's appeal. The court clarified that for an employer to be answerable for disability discrimination, they must have actual or constructive knowledge of the facts constituting the employee's disability as defined in Section 1(1) of the DDA. These facts include a physical or mental impairment which has a substantial and long-term adverse effect on the employee's ability to carry out normal day-to-day activities, as clarified by Schedule 1 of the DDA. It is not necessary for the employer to know that, as a matter of law, the employee is a "disabled person".

The Court of Appeal found that the ET and EAT had erred in law by concluding that Newport was entitled to rely solely on the Occupational Health advisers' opinions that Mr Gallop was not a "disabled person". The OH opinions were considered "worthless" because they were unreasoned and did not provide supporting details as to why Mr Gallop was not considered disabled under the DDA's specific criteria. The court stated that the employer cannot simply "rubber stamp" an adviser's opinion; rather, the employer must form its own judgment as to whether the employee is or is not disabled based on the underlying facts. The ET had failed to inquire into whether Newport had actual or constructive knowledge of the section 1/Schedule 1 facts constituting Mr Gallop’s disability.

Consequently, the Court of Appeal set aside paragraph 2 of the EAT’s order and paragraph 2 of the ET’s judgment relating to the disability discrimination claims. The case was remitted to the Employment Tribunal for a re-hearing of Mr Gallop's discrimination claims, with guidance on the correct legal approach.

Comment

This case is significant because it clarifies the nature of the "knowledge" an employer must possess regarding an employee's disability to be held liable under discrimination legislation. It establishes that an employer cannot delegate its responsibility to determine disability to medical advisers by simply accepting their unreasoned conclusions. While employers are encouraged to seek assistance and guidance from occupational health or other medical advisers, they must ensure this advice provides sufficient factual detail to enable the employer to make its own informed judgment against the legal criteria for disability.

The judgment highlights the importance of employers asking specific, practical questions to clinicians that are directed to the particular circumstances of the putative disability, addressing the three elements of disability as set out in Section 1(1) of the DDA. This structured approach ensures that the advice received provides "real assistance" to the employer in forming a judgment as to whether the criteria for disability are satisfied, rather than just a general, unsupported conclusion. The case's principles are also relevant to the similar disability discrimination provisions in the Equality Act 2010, making it of continuing practical importance.