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Article by Laura H. Juillet http://www.mondaq.com/x/280976/employment+litigation+tribunals/Three+Golden+Rules+When+Considering+Whether+An+Employee+Is+Disabled Last month, we looked at when employer might be deemed to have knowledge of an employee's disability, discussing (among other cases) the EAT's decision Gallop v Newport County Council. At that time we noted that the appeal had already been heard in the Court of Appeal but judgment had been reserved. The Court of Appeal has this week handed down its decision, urging caution to employers tempted to simply rely on an Occupational Health report to argue that they did not know (and could not reasonably have been expected to know) about an employee's disability. We look at the impact of this judgment, and consider three 'golden rules' for employers when seeking opinions on whether an employee is disabled. Why do you need to know about an employee's disability? A duty to make reasonable adjustments in respect of a disabled employee will not arise if the employer does not know, and could not reasonably be expected to know: • that the individual is disabled, or • that he or she is likely to be placed at a substantial disadvantage because of that disability compared with non-disabled people (paragraph 20, schedule 8 of the Equality Act 2010). 'Disability' has a particular legal meaning under the Equality Act 2010: an individual will only be disabled if he suffers from a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. (Section 6(1), Equality Act 2010). An employer who can successfully show that they did not know (and could not have been expected to know) about a disability will therefore be able to demonstrate that it was under no obligation to make any reasonable adjustments – a potentially powerful defence for employers in Tribunals. How do you 'know' about a disability? Such a defence will not necessarily be an easy one to prove, however. As we discussed in our previous blog, whether an employer knows (or could reasonably have been expected to know) that an employee is disabled is often a complicated and subtle issue, especially in the case of mental illness. Whether an employee is disabled for the purposes of the Equality Act 2010 is a question often asked of an occupational health provider ("OHP"). The issue which arose in the current case of Gallop v Newport County Council, is what the employer should do if the OHP report clearly states that the employee is not disabled? How far can an employer rely on such a statement? Previous indications from the EAT In the current case, Mr Gallop suffered from symptoms of work-related stress, and was referred to an OHP by the Council. One of the OHP reports stated that "I have taken the opportunity to refer him for counselling in order to assist with any ongoing stress and I would confirm that the provisions of do not apply in this case in my view." This view – that Mr Gallop was not disabled – was confirmed in at least three other reports. Mr Gallop brought claims against the Council for direct disability discrimination and a failure to make reasonable adjustments. The Tribunal held that, although Mr Gallop was in fact disabled at the relevant time, the Council was entitled to rely on the advice of the OHP, and so could not have been reasonably expected to know about this disability. The Tribunal recognised that there are particular questions which must be answered when ascertaining whether an employee is disabled (namely whether the employee suffers from a physical or mental impairment which has a significant and long-term impact on his day-to-day activities). It considered that the "best way" for the employer to answer those questions is to seek advice from appropriately qualified medical professionals. Of course the employer should then be able to rely on such advice, the Tribunal concluded, unless there is some reason to show that the advice is negligent or being provided without all the relevant information. The EAT agreed with the Tribunal's findings in this respect. Court of Appeal decision means employers should not unquestioningly rely on OHP conclusions It seemed, therefore, based on the EAT's judgment, that an employer could legitimately rely on an OHP's conclusions that there was no disability, when defending a claim for reasonable adjustments. A useful argument for employers at Tribunal, of course, but we nevertheless advised caution: employers still had to be sure to make all reasonable enquiries of that OHP; they could not simply sit back and say they did not know about a disability when they had not even asked the pertinent questions of a medical expert. This view is firmly supported by the Court of Appeal's judgment in the current case, published this week. The Court held that both the Tribunal and the EAT were wrong to consider that the Council could deny knowledge of the disability "by relying simply on its unquestioning adoption of unreasoned opinions that Mr Gallop was not a disabled person." The Court went on to stress the importance of making all relevant enquiries into a possible disability and not unquestioningly following OHP's opinion. Practical points for employers – three 'golden rules' In light of this case, employers would do well to remember three 'golden rules' when seeking OHP's opinion on an employee's possible disability: 1. Seek advice and assistance from OHP, but don't stop there: the Court of Appeal is certainly not advising doing away with OHP opinions altogether. Make sure, though, that OHP reports are just part of your enquiries into the employee's condition – you will no doubt need to speak to the employee, and maybe other medical professionals, when considering whether you need to make reasonable adjustments. 2. Make sure the OHP's opinion is a reasoned one – ask directed questions: the OHP reports were criticised in this case for not providing supporting reasoning for the view that Mr Gallop was not disabled. Because of this, the Court of Appeal held, the employer should have formed its own view on disability – relying on the OHP's 'worthless' opinion was not acceptable. Ensuring, therefore, that your OHP is not just stating whether the employee is disabled, but is also explaining why he thinks so, you are more likely to be able to rely on a conclusion that there is no disability. Ask directed questions about the employee's condition and its duration and effects, not just a general question as to whether the employee is disabled. 3. No 'rubber stamping': The Court of Appeal made expressly clear that the ultimate factual judgment as to whether the employee is or is not disabled must be made by the employer. Always go back to the definition of disability in the Equality Act 2010, and ask yourself whether each element applies to the employee, based on all the reasonable enquiries you have made. Do not simply 'rubber stamp' the opinion of the OHP. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.