Most employers in my experience are now much more aware of the issue of disability in the workplace and the complex issues that can arise.
The Equality Act establishes some fairly broad guidelines and definitions, and with come types of illnesses or impediments, it can be very difficult for the employer to establish whether the employee has a disability in the legal sense, and also what form of reasonable adjustments, if any , are necessary and/or reasonable taking into consideration the size and resources of the employer.
Most employers are also aware that, with employment law, process can be as important as substance. An employer needs to be able to demonstrate an objective way of dealing with employee issues, which is fair and implemented consistently.
Set against this context, it is hardly surprising that many employers, especially larger ones, rely heavily on advice from Occupational Health consultants where employees may have a disability. The problem is that case law suggests that only using such consultants to determine the issue is itself legally risky.
In the case of Gallop v Newport City Council  EWCA Civ 1583 the employee had apparent stress related issues causing absence from work. The employer sought assistance from Occupational Health and were advised that the employee health issue was unlikely to constitute a disability in legal terms. The employer relied on this advice. The case reached the Court of Appeal and clearly created some difficult deliberations for the lower tribunals. On appeal, the employee was awarded damages for disability discrimination and unfair dismissal.
The primary reasoning of the Court was that it is not sufficient for an employer to simply outsource the consideration of whether an employee is disabled or not. The employer must consider the issue itself and in the case of an Occupational Health report, this would normally mean asking some specific questions or looking for clarification and not simply relying on a generic report.
The principle set down in this case is very much in line with another case we discussed on this blog, where it was considered insufficient for an employer to simply rely on myriad and detailed tests when deciding redundancy – in that case, however fair and objective the employer intended to be, it did not act fairly because it was in effect relying on processes alone i.e was too objective.
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