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Disability discrimination: Knowledge of decision maker

Published On: 15 April 2016

In this case, the EAT considered whether the dismissal of an employee could be direct discrimination when the decision maker was not aware that the employee was disabled.

The facts

Mr Gallop was employed by Newport City Council (Newport) until he was dismissed in May 2008. During his employment, Mr Gallop complained of stress to Newport and was referred to its occupational health advisers (OH). OH wrote to Newport, saying that Mr Gallop had "stress-related symptoms" but there were no signs of clinical depression. On a number of occasions over the course of the next few years Mr Gallop was signed off sick, with what OH said was a work-related "stress-related illness". However, OH did not consider that Mr Gallop had a "depressive illness", or that he was "disabled", although it gave no explanation for that opinion.

After a return to work, Mr Gallop was suspended following bullying allegations against him and was subsequently dismissed.

Mr Gallop brought claims for unfair dismissal, direct disability discrimination and failure to make reasonable adjustments in the employment tribunal. The tribunal upheld his unfair dismissal claim, but dismissed his discrimination claims on the basis that at no material time did Newport know, or ought reasonably to have known, of Mr Gallop's disability. The EAT upheld that decision, but it was overturned by the Court of Appeal. The court held that Newport had been wrong to accept OH's opinion that Mr Gallop was not disabled. It had failed to ask OH the right specific questions, and it was the ultimate responsibility of the employer to apply its own mind to the test on whether an employee was disabled or not. The court remitted the disability discrimination claims back to a differently constituted employment tribunal.

On remittal, the tribunal dismissed Mr Gallop's discrimination claims and he appealed again to the EAT.

The EAT dismissed the appeal and made the following findings in relation to the disability discrimination claim:

  • Mr Gallop's argument that the knowledge of disability of one employee (in this case, OH) must be imputed to all employees was misconceived in the context of direct discrimination. The focus should be on the employee committing the alleged discriminatory acts and on their state of knowledge and state of mind. The decision under question was solely that of one particular manager. What had to be addressed was the mental thought process of that decision-maker and not that of those providing information to that person, unless it could be considered a joint decision;
  • The statutory code of practice states that employers are unlikely to be able to argue that they have no knowledge of disability if an employee or agent of the employer – e.g. HR, OH or a recruitment consultant – knows of the disability.  However, while this establishes practical guidance that should be taken into account by the tribunal when considering knowledge of disability, it is only guidance. It does not establish a principle of imputed knowledge of general application;
  • It was correct for the employment tribunal to concentrate on the state of mind of the decision-maker in the disciplinary process, as he was solely responsible for taking the decision to dismiss. The EAT held that the tribunal was entitled to conclude that the decision-maker had no actual knowledge of Mr Gallop's disability, and there was no evidence his decision to dismiss was because of an intention or motivation stemming from Mr Gallop's disability;
  • There was no evidence that anybody involved in the dismissal process had acted as they had done because of Mr Gallop's disability, and this point had not been raised with the witnesses during cross examination in the remitted hearing.

What does this mean for employers?

Employers should be aware that this case, while useful in the context of direct disability discrimination claims, has no bearing on the question of knowledge in reasonable adjustment claims. Employers will not escape the duty to make reasonable adjustments where they should reasonably have known about an individual's disability and the substantial detriment they suffer. This means that employers should take steps to find out about disabilities and have systems in place to do so. 

Gallop v Newport City Council