Knowledge of a Disability
The knowledge of an Occupational Health adviser of a disability cannot be imputed to the employer according to the EAT in Gallop v Newport City Council. Knowledge of a disability is essential in claiming that an employee or worker has been discriminated against.
The EAT found that knowledge cannot be implied, even where the fact of disability is already known within the organisation. The EAT said that the focus of an employment tribunal’s enquiry ought to be on the thought processes and motivation of the decision-maker. The test is simply: did the decision-maker know of the disability and were they influenced by it?
This decision conflicts with the EHRC Statutory Code of Practice on Employment at paras 5.17 to 5.19 which provide that employers will usually not be able to use the knowledge defence to a disability discrimination claim if an employer’s agent or employee such as Occupational Health has knowledge.