No Imputed Intention for Direct Disability Discrimination

9 June 2016

Gallop v Newport City Council UKEAT/0118/15 

In this case the EAT dealt with the issue of the decision maker’s knowledge in a direct disability discrimination claim.

The brief facts of the case were that Mr Gallop was employed by Newport City Council. He was referred to the council’s Occupational Health department due to stress. He was signed off on a few occasions with stress related illness, however occupational health did not consider that he had a depressive illness, or that he was covered by the Disability Discrimination Act 1995. After a return to work Mr Gallop was suspended following an allegation of misconduct and later dismissed.

One of the key questions that came before the EAT was whether the knowledge of the employer’s occupational health department should be imputed to the ultimate decision maker. The EAT rejected the suggestion that the knowledge should be imputed to the decision maker. It held that the true question, for the purposes of direct disability discrimination claims, is the motivation, intention and knowledge of the decision maker. There was no evidence the decision maker knew of the disability and therefore there could not be an act of direct discrimination.

It is worth noting that this finding was in relation to direct disability discrimination claims. For the duty to make reasonable adjustments, the law relating to implied or constructive knowledge of the disability still applies. The finding is seen to be inconsistent with some Equality and Human Rights guidance, but it is consistent with the 2015 Court of Appeal case of CLFIS (UK) Ltd v Reynolds [2015] IRLR 562.

In terms of practical consequences arising from this case, it arguably leaves an employer in a difficult scenario when deciding who should deal with investigatory and disciplinary procedures. Whilst on the one hand, the finding in relation to direct disability discrimination suggests that an uninformed decision maker may be less prone to allegations of discrimination, for other claims where knowledge can be imputed (as with the duty to make reasonable adjustments) arguably an informed decision maker who is aware of all the circumstances is more appropriate. Despite this conundrum, in general, perhaps the optimum approach would be to appoint a decision maker who had no prior involvement and to ensure that this decision maker is given all of the relevant information to enhance the likelihood of them arriving at an unprejudiced yet informed decision.

Further information

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