But, how far can an employer rely on an OH report?
In Gallop v. Newport City Council, the Court of Appeal considered the role of OH and provided guidance on how far an employer can rely on an OH report which provides an opinion on whether or not an employee is disabled.
Mr Gallop had been absent from work on a number of occasions over several years due to a work-related stress illness and "reactive depression". On two occasions, OH advised the Council that it did not believe that Mr Gallop was disabled under the relevant legislation (at the time of the case, the Disability Discrimination Act 1995 was in force. However, this decision is still relevant for cases under the Equality Act 2010). OH did not provide an explanation for its opinion. Mr Gallop was ultimately dismissed by the Council following allegations of bullying and brought claims of unfair dismissal and disability discrimination. The Council argued that it could not have had actual or constructive knowledge that Mr Gallop was disabled because of the statement by the OH adviser.
The Court of Appeal held that the Council could not simply adopt, without question, the unreasoned opinion of OH that Mr Gallop was not a disabled person and therefore deny knowledge of disability. The Court considered that a responsible employer has to make its own judgement as to whether an employee is or is not disabled. An employer, in making that judgement, may require assistance and guidance from OH or other medical advisers. If the guidance is that the employee is not a disabled person in the opinion of the OH adviser, the employer cannot simply "rubber stamp" that opinion. The employer must remember that it still has to make the ultimate factual decision as to whether the employee is or is not disabled.
The Court provided guidance on seeking outside advice. In particular, it highlighted the need for employers to ask specific and practical questions to OH tailored to the particular circumstances of the disability and the case, not to simply ask in general terms whether the employee is a disabled person or not. The answers to the specific questions will provide assistance to employers to help form a judgement as to whether the criteria for disability are satisfied.
This case is a reminder that whilst OH reports can be invaluable in providing guidance on considering the issue of disability, the opinion of OH should not trump all other facts that the employer is aware about which might suggest that an employee is disabled. It also emphasises the importance of asking the right questions of OH.