When you have an employee absent on sick leave it can be important to gain an understanding of the employee’s medical condition so that any decisions taken are in light of all the facts.
A medical report can be sought from an employee’s GP but often it is more practical to obtain this from an independent occupational health adviser who will often provide a more detailed and independent account of an employee’s health which in turn will offer better guidance for an organisation as to the next step action required.
Medical reports are particularly useful in helping to understand whether the condition the employee is suffering from could be classed as a disability under the Equality Act 2010. If an employee is disabled for the purposes of the Equality Act 2010, then a duty will be imposed on an employer to make reasonable adjustments for disabled employees within the meaning of the Act.
What is a disability under the Equality Act 2010?
An employee is disabled under the Equality Act 2010 if:
- He/she has a physical or mental impairment.
- That impairment has an adverse effect on their ability to carry out normal day-to-day activities.
- The effect is substantial.
- The effect is long-term.
An employer will not be obliged to make reasonable adjustments unless it knows or ought reasonably to know that the employee is disabled and likely to be placed at a substantial disadvantage because of their disability.
As above a medical report can help in determining the issue of whether an employee is disabled.
However it is important for employers to apply its own mind to the test for deciding whether an employee is disabled under the above discrimination legislation.
The importance of this has been further highlighted in the case of Gallop v Newport City Council [2013] EWCA Civ 1583.
Gallop v Newport City Council
The facts of the case are:
Mr Gallop worked for Newport City Council (Council). He informed Newport that he was suffering from stress, with symptoms including lack of sleep and appetite, headaches and nausea. The Council referred Mr Gallop to be assessed by its external occupational health advisers (OH). The OH wrote to the Council to advise that Mr Gallop had “stress-related symptoms” but there was no sign of clinical depression. On a number of occasions over the course of the next few years, Mr Gallop was signed off sick, with what OH said was work-related “stress-related illness”. However, OH did not consider that Mr Gallop had a “depressive illness.”
During this time, Mr Gallop lodged a grievance and as part of his grievance he stated that his GP had diagnosed him with depression and he complained that the Council had not taken sufficient steps to ensure his health and safety at work. The Council denied this and stated that they had removed some of his duties and arranged a phased return to work. Mr Gallop’s grievance was rejected by the Council.
OH continued to assess Mr Gallop and found that he remained ill. Mr Gallop’s GP also corresponded with OH, saying that he doubted whether Mr Gallop would be able to return to his current job. On two occasions, OH told the Council that it did not believe that Mr Gallop was covered under the Disability Discrimination Act 1995 (which has since been replaced by the Equality Act 2010 on 1 October 2010). No explanation was given for this opinion.
Mr Gallop was eventually cleared to return to work by both OH and his GP. However the Council suspended him following this on the basis of bullying allegations, and these allegations ultimately led to Mr Gallop’s dismissal.
Mr Gallop issued claims for unfair dismissal and disability discrimination claims (direct discrimination and reasonable adjustments) at an employment tribunal.
The tribunal upheld Mr Gallop’s unfair dismissal claim but dismissed his discrimination claims. The tribunal found that unless the Council had good reason for forming a different view, it was entitled to rely on OH’s advice as to whether Mr Gallop was or was not “disabled”. In the tribunal’s view, if the OH advice is that Mr Gallop was not disabled, that even if he were in fact disabled, the Council did not have the requisite knowledge to engage its duty to make reasonable adjustments.
The EAT upheld the tribunal’s’ judgment. Mr Gallop appealed to the Court of Appeal.
The Court of Appeal unanimously upheld Mr Gallop’s appeal and remitted the case to the tribunal. In giving their judgment the Court of Appeal advised that responsible employers have to make their own judgements as to whether an employee is disabled. The Court of Appeal discussed that employers will usually want assistance from either an occupational health adviser or other medical advisers in determining the issue but warned employers that where the guidance advises that the employee is not disabled, it is the employer who is responsible (not the medical advisers) for making the final factual judgement. The Court of Appeal held that an employer cannot simply “rubber stamp” a medical adviser’s opinion that an employee is not disabled.
Conclusion
If you have an employee absent on sick leave and you are wishing to obtain a medical report, it is important to ask specific questions of the medical practitioner in order to help you determine whether the criteria for disability are satisfied.
By doing this it will assist you in reviewing the report in conjunction with test for disability under the Equality Act 2010 and in turn will show you have applied your mind effectively to the question of whether or not your employee is disabled.
For any questions in relation to this or any employment law matter please contact Caroline or Marie on 0113 357 1315 or enquiries@consilialegal.co.uk
References
Gallop v Newport City Council [2013] EWCA Civ 1583