When does an employer have knowledge of a disability?
The Employment Appeal Tribunal decided in the case of Gallop v Newport City Council that although the Council’s Occupational Health team were aware of Mr Gallop’s disability, this did not mean that the rest of the organisation, and in particular the decision maker in this case, were aware of the Claimant’s disability.
This decision appears to go against the guidance provided in the Equality and Human Rights Commission Statutory Code of Practice on Employment. The Code sets out that employers will not be able to rely on the knowledge defence if an employer’s agent or employee has knowledge. The Code specifically gives the example of Occupational Health having knowledge and the employer not being able to argue they did not have knowledge. It is difficult therefore, to see how the decision is in line with the Code.
An appeal against this decision is possible in order to resolve the conflict between the EAT’s decision and the Code.