Gallop v Newport City Council UKEAT/0586/10/DM

R’s Occupational Health department (OH) had consistently maintained that despite C’s medical condition
(stress) he was not disabled. The ET found that R did not have actual or constructive knowledge of C’s
disability. C appealed against this finding. The unfair dismissal appeal is not dealt with in this summary.

Facts

C was initially employed as a horticulture training officer, thereafter a countrywide warden, grounds
technician and eventually a technical officer. From May 2004 he reported symptoms of stress-related illness
and was referred to OH in 2005. OH diagnosed him with ”stress-related illness” directly related to his work
but not with a depressive illness. In 2006 he was diagnosed with depression by his GP. From October 2006,
OH were asked to comment on whether the DDA applied to C and they advised that it did not on at least
three occasions. After the parties had failed to agree a compromise agreement C was dismissed for gross
misconduct in proceedings that the ET described as a ”sham”.

Held

C raised a number of arguments on appeal. Firstly, that it was enough that R was aware of the elements of C's
condition and that R did not have to know that this amounted to a disability. Secondly, that the Tribunal
failed to consider knowledge imputed to them through their agents, the OH advisors. Thirdly that they failed
to consider the effect of R's concession at the PHR that C was in fact disabled whilst in their employment, but
only from July 2007 to his dismissal in 2008.

In a sparsely reasoned judgment, the EAT dismissed these submissions for three reasons (para 25): firstly, R
was entitled to rely on the advice from OH; secondly, that the knowledge to be imputed to R through OH was
that he was not disabled; thirdly, the fact that R made a concession at the PHR did not stop R from raising the
issue at the substantive hearing. Finally, C attempted to argue that the findings were perverse but the EAT
stated that this claim did not pass the high threshold for a perversity appeal.

Comment

This is an important case. It is helpful to examine the decision in this case together with the decisions in
Jennings v Barts & the London NHS Trust (2013/1/p.9), Walker v Sita Information (2013/1/p.17) and ZH v
Commissioner of Police of the Metropolis (2013/1/p.19). As of 31 January 2013, permission to appeal has
been granted by LJ Elias with the comment that ”it might be thought surprising if an employer could say we
have received advice that an employee is not disabled and rely on that. I am very curious to see what the
outcome is!”

This case has important implications for a number areas of disability discrimination. For example, it will help
to identify what will be a sufficient mens rea for the purpose of direct discrimination. The answer to when a
person can be said to know that another person is disabled or whether he is treating him less favourably
because of disability may depend on the outcome. Will the answer be that they need to be aware of all of
the elements of the statutory definition or will it be sufficient for a person to know less? Does a person need
to about that a person is being affected by cancer or merely that they have it? Like Elias J, we await the
outcome with anticipation.