UK: Disability - employers cannot outsource judgement on whether individual disabled

Employers should apply their own minds to the statutory test for deciding whether an employee is disabled and should not simply accept occupational health advice unquestioningly.

An employer is obliged to make reasonable adjustments for a disabled employee if it knows or ought reasonably to know (ie, has constructive knowledge) that the individual is disabled and likely to be placed at a substantial disadvantage because of their disability.

The relevant question was whether, on the facts known to it, the employer had constructive knowledge of the individual's disability, notwithstanding a bald statement from an occupational health adviser that the individual was not disabled within the legislation. The employer was not entitled simply to rely on this report given it contained no supporting reasoning.

It is not sufficient for employers to ask external medical advisers simply whether an employee is disabled within the definition. Employers must judge for themselves whether the criteria for disability are satisfied, so should ask medical advisers specific practical questions tailored to the particular circumstances of the employee's putative disability and in respect of each element of the definition (ie, whether there is a physical or mental impairment, whether that impairment has a substantial and long-term adverse effect, and whether the impairment affects the employee's ability to carry out normal day-to-day duties). The answers should be assessed by the employer alongside its own appreciation of the facts. (Gallop v Newport City Council, CoA)