Knowledge of Disability

Employers have a duty to make reasonable adjustments for disabled employees under Section 21 and Section 20 Equality Act 2010.

However, Section 15 provides that the Employer does not discriminate if he did not know, and could not reasonably be expected to know that the Employee is disabled.

So, what if the Employer seeks professional advice from an Occupational Health provider and is informed (incorrectly) that the Employee does not qualify as disabled within the meaning of the legislation? Does this mean that the employer ‘does not know and cannot reasonably be expected to know that the Employee is disabled’?

You would be forgiven for thinking that the Employer could rely upon the expert’s advice and safely conclude on this basis that the Employee is not disabled. However, the Court of Appeal in Gallop v Newport City Council has decided that although Employers should seek advice from appropriately qualified medical advisors, they nevertheless cannot rely upon what they are told and merely ‘rubber stamp’ the advice. The Employer must make its own factual judgment as to whether or not the Employee is disabled.

This places a most uncomfortable burden on Employers, who cannot even rely upon what qualified medical professionals tell them and have to decide upon disability themselves when the issue taxes a great many Employment Judges.

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