No Direct Disability Discrimination as Decision Maker did not Know Employee Disabled
An employee’s dismissal was not direct disability discrimination as the decision maker did not know that he was disabled. Occupational health’s knowledge could not be imputed to the decision maker.
An employee’s dismissal was not direct disability discrimination. In deciding whether the reason for dismissal was disability, the employment tribunal had been correct to focus on the knowledge, intention and motivation of the sole decision maker. In cases of direct discrimination, it is not possible to impute the knowledge, intention or motivation of one employee to another.
In Gallop v Newport City Council, Mr Gallop complained of stress and was referred to Occupational Health (OH). He had a number of absences for work related stress. After he returned to work, allegations of bullying were made against him and he was subsequently dismissed. He brought a number of claims, including that his dismissal was because of his disability and therefore constituted direct disability discrimination.
The employment tribunal dismissed his claim. The person who made the decision to dismiss Mr Gallop did not know of his disability. Mr Gallop appealed to the Employment Appeal Tribunal, arguing that the OH adviser’s knowledge of his disability could be imputed to the dismissing officer.
The EAT disagreed. In deciding whether the reason for Mr Gallop’s dismissal was his disability, the employment tribunal had been correct to focus on the knowledge, intention and motivation of the sole decision maker. The employment tribunal had found that the decision maker had no actual knowledge of his disability. It is not possible to impute the knowledge, intention or motivation of one employee to another. The employment tribunal had therefore been entitled to find that Mr Gallop’s disability was not the reason for his dismissal.
In direct disability discrimination cases, an employment tribunal must determine the reason why the employer treated the employee less favourably i.e. whether it was because of disability. This involves considering the knowledge, intention and motivation of the decision maker(s). If the decision maker is unaware of the employee’s disability, then the reason for the treatment cannot be disability. Where others within the employer’s organisation know of an employee’s disability, this knowledge will not be imputed to the decision maker(s).
However, the position is different where an employee claims that their employer has breached its duty to make reasonable adjustments. This is because an employer who does not know of an employee’s disability may still be under a duty to make reasonable adjustments if it ought reasonably to have known of the disability. In considering that question, it remains possible to impute knowledge to the employer based on what its employees or agents knew.
The EHRC Code of Practice states that if an employer’s agent (such as an occupational health adviser) knows of a worker’s disability, the employer will not usually be able to claim that they did not know of the disability. However, this statement is made in the context of the duty to make reasonable adjustments (where knowledge may be imputed) and does not therefore apply in the context of direct discrimination where the decision maker must actually know of the employee’s disability.
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