Decisions on disability non-delegable

Posted: 20th December 2013

In a guideline decision, the Court of Appeal has ruled that employers cannot simply rely on the word of external advisers – no matter how well qualified – when deciding for themselves whether members of staff are, or are not, disabled.

Whilst recognising that its decision ‘may seem hard’ and places tough requirements on employers, the Court found that unreasoned advice given by respected occupational health consultants was ‘with respect, worthless’ and could not be ‘unquestioningly adopted’ by a local authority employer.

StressA grounds maintenance officer had suffered a lengthy history of debilitating symptoms which the consultants had consistently described as a ‘stress-related illness’. After periods of sick leave, and several abortive attempts to return to work, the officer was eventually dismissed after colleagues accused him of bullying and said that they would not work with him.

He launched Employment Tribunal (ET) proceedings and was awarded more than £60,000 in compensation after his unfair dismissal claim succeeded. However, his disability discrimination claim failed after the ET ruled that, prior to his dismissal, the local authority had had neither actual, nor constructive, knowledge that he was in fact severely depressed and, therefore, disabled. The officer’s challenge to that decision was subsequently dismissed by the Employment Appeal Tribunal.

The local authority had denied any failure to make reasonable adjustments and argued that it was entitled to rely on the advice of the consultants, who had at no point diagnosed that the officer was suffering from a mental impairment which was likely to have a substantial and long-term adverse effect upon him.

In allowing the officer’s appeal and remitting his discrimination claim for fresh consideration by the ET, the Court emphasised that the local authority’s duty to decide whether he was disabled was non-delegable.  The consultants’ ‘unreasoned opinion’ that he was not suffering from a disability was ‘worthless’ and the local authority was not entitled to adopt it without question.

The Court concluded, “This case illustrates the need for the employer, when seeking outside advice from clinicians, not simply to ask in general terms whether the employee is a disabled person within the meaning of the legislation but to pose specific practical questions directed to the particular circumstances of the putative disability. The answers to such questions will then provide real assistance to the employer in forming his judgment as to whether the criteria for disability are satisfied."