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23 May 2016

Knowledge of the decision-maker is key for establishing direct disability discrimination

One of the defences to a claim of direct disability discrimination is that the employer did not know the employee was disabled. In Gallop v Newport City Council the EAT considered the Court of Appeal’s decision in Canada Life v Reynolds where it was held that in a case of direct age discrimination the tribunal must focus on the thought processes and motivation of the decision-maker and not those of the people who supplied information to them.
Mr Gallop had complained of stress at various times during his employment. He was referred to occupational health who specifically stated it did not think he had a disability. He was eventually dismissed and brought a number of claims including for direct disability discrimination and failure to make reasonable adjustments. These were dismissed by the tribunal on the basis that at no material time did Newport know, or ought reasonably to have known, of his disability. He appealed this issue to the Court of Appeal which held that the employer had been wrong to accept the occupational health report without asking the right questions and that it was for the employer to make its own decision as to whether an employee is disabled. The case went back to the tribunal which dismissed his claims again.
He appealed and argued that where one employee, in this case, occupational health knew of his disability their knowledge must be imputed to all employees. However, the EAT said this was misconceived in the case of direct discrimination. Following Canada Life v Reynolds the focus should be on the decision-maker and their mental thought processes. There was no room in these circumstances for imputed knowledge. The decision maker in the disciplinary process had no actual knowledge of Mr Gallop’s disability and there was no evidence that his decision to dismiss was because of an intention or motivation stemming from his disability.
Our practical points
This decision relates to direct disability discrimination only. The test is did the decision-maker know of the disability and were they influenced by it?
Employers should be aware, however, that in a reasonable adjustments claim the employer may have imputed knowledge in certain circumstances.

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