Gender pay gap reporting: Clarification
The Government Equalities Office has clarified the scope of the draft regulations on gender pay gap reporting.
Published 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.
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:
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.