Tribunal: Disability discrimination: reliance on occupational health

Kelly v Royal Mail Group


After dismissal for poor attendance, Mr Kelly claimed discrimination against his disability. The employment appeal tribunal found that Mr Kelly’s employer had acted properly by consulting occupational health and considering their opinion. The appeal was ultimately rejected.


Mr Kelly was a postman working for Royal Mail. He had poor attendance due, in part, to carpal tunnel syndrome.

He was managed in line with Royal Mail’s attendance policy and eventually dismissed.

Mr Kelly took the matter to an employment tribunal, citing numerous claims including disability discrimination. However this was unsuccessful as the employment tribunal reasoned that Royal Mail did not know, nor could have been expected to know that Mr Kelly was disabled and therefore covered by the Equality Act (2010).

The case of Gallop v Newport City Council in 2013 found that employers should not simply take the advice of occupational health as fact, as it is the employer’s responsibility to make the assessment as to whether or not an employee is disabled, and that this decision should be made with the input of occupational health. However if the employer had actual or constructive knowledge of the facts concerning a disability (particularly if these weren’t considered as part of the occupational health assessment) these should also be considered by the employer.

Mr Kelly cited this argument in the employment appeal tribunal. However his appeal was rejected, as Royal Mail demonstrated they had given proper consideration to the occupational health reports regarding whether or not Mr Kelly met the definition of disability.

In other words, contrary to the Gallop case, the employer’s reliance on the occupational health reports didn’t amount to a simple ‘rubber stamping’ exercise – particularly as the reports gave reasoned and detailed explanations for their conclusions.

As such Royal Mail did not know, and could not have been expected to know about Mr Kelly’s disability, and therefore could not have discriminated against him.

The employment appeal tribunal added “the Tribunal also noted, correctly, that an employer may attach considerable weight to the informed and reasoned opinion of an Occupational Health medical consultant in reaching its own assessment.”

This case is a relief for employers. It demonstrates that employers can rely upon the advice from independent medical professionals such as occupational health advisors, when reaching conclusions about managing an employee.

However it is important to note that an employer should still take care and attention when evaluating the advice from occupational health – if there are other factors that you are (or could be) aware of, these should not be discounted. Similarly it is important to include all relevant information within an occupational health referral, so this can be considered by the medical professional. Additionally, it is important that any conclusions drawn within your occupational health reports are detailed and reasoned, substantiated by medical evidence. If you are unsure or need clarification, it is important to seek it from your occupational health provider.

Read the full decision here.