In Gallop v Newport City Council, the EAT has upheld the decision of the employment tribunal that an employee’s dismissal was not direct disability discrimination as the employer’s decision maker was unaware he was disabled when the employee was dismissed.

Background

Mr Gallop was employed by Newport City Council until he was dismissed in May 2008. During his employment, Mr Gallop complained of stress to the Council and was referred to its occupational health advisers. OH wrote to the Council, saying that Mr Gallop had “stress-related symptoms” but there were no signs of clinical depression. After a period of absence from work with a stress related illness, Mr Gallop was suspended following bullying allegations and subsequently dismissed.

Mr Gallop brought a claim for direct disability discrimination which was dismissed by the employment tribunal on the basis that at no material time did the Council know, or ought reasonably to have known, of Mr Gallop’s disability. The EAT upheld that decision, but it was overturned by the Court of Appeal who remitted the disability discrimination claim back to a differently constituted employment tribunal.

 Remittal

On remittal, the tribunal again dismissed Mr Gallop’s direct discrimination claim and he again appealed to the EAT. The EAT dismissed the appeal and made the following findings:

• Mr Gallop’s argument that as OH had knowledge of his disability, this knowledge must be imputed to all employees was misconceived in the context of direct discrimination.

• Previous case law (CLFIS (UK) Ltd v Reynolds) laid down that the focus should be on the state of knowledge and state of mind of the employee committing the alleged discriminatory acts. In Mr Gallop’s case, the decision under scrutiny was solely that of one particular manager. What had to be addressed was the mental thought process of the decision-maker and not that of those providing information to that person. The EAT held there was “no room for imputed knowledge in this context”. It held that the tribunal was entitled to conclude that the decision-maker had no actual knowledge of Mr Gallop’s disability and there was no evidence that his decision to dismiss was because of an intention or motivation stemming from his disability.

Comment

It is important to understand that this decision relates only to direct disability discrimination, and not a failure to make reasonable adjustments. The previous case law on implied or constructive knowledge of disability in connection with the duty to make reasonable adjustments continues to apply.