Donelien v Liberata (UK) Ltd

This is an application for permission to appeal against a decision of the Employment Appeal Tribunal dismissing an appeal from the Employment Tribunal which had held that the employer, Liberata (UK) Limited, were not in breach of their duty to make reasonable adjustments under the Disability Discrimination Act.

As a result of a preliminary hearing in the Employment Tribunal it was common ground that Ms Donelien was in fact disabled by August 2009. The question for the Employment Tribunal was not therefore whether she was disabled, but whether the disability was something which the employer ought reasonably to have known about. They set out the law in paragraphs 125 to 129 of their decision and I do not think that any criticism can be made of the way that they set that out. They came to their conclusion on the question whether the employer ought reasonably to have known of Ms Donelien’s disability in paragraphs 152 and following of their decision. The employers had advice from Occupational Health, although that was wrong in part as the Employment Tribunal accepted, but they went on to say that the advice they were getting chimed with their own experience and impression and two letters that they had received from Ms Donelien’s GP which they said “were all consistent in saying that although the claimant had a number of health difficulties, stress and anxiety, it fell short of coming under the definition of disability”. It was because of that that the Employment Tribunal considered that the employers did all they reasonably could be expected to have done to find out about the true nature of the health problems that Ms Donelien was suffering from.

That, as I have said, was appealed to the Employment Appeal Tribunal and the appeal was dismissed essentially because what the Employment Tribunal had done was to answer a question of fact and their answer could not be described as perverse. It is perfectly true that an appeal to the Employment Appeal Tribunal and, indeed, an appeal from the Employment Appeal Tribunal to this court can only be advanced on a question of law. On the face of it there is a very uphill struggle in appealing against what is essentially a finding of fact by the Employment Appeal Tribunal.

Ms Donelien first argued that the employer had in fact made reasonable adjustments for a period of about a year from the time when her health problems first came to the employer’s attention and that that in itself shows that they knew or ought reasonably to have known that she was disabled. I do not think that argument has a real prospect of success. The mere fact that an employer does make adjustments in fact does not entail the conclusion that the employer has a legal obligation to make those adjustments. It may simply do so as a matter of good practice or because it wishes to treat employees fairly without having a legal obligation to do it.

What Ms Donelien argues in effect is that the Employment Tribunal misunderstood the letters from her GP which consistently referred to problems of hypertension and stress, all of which needed medication. Those were continuing matters, culminating in a letter from her GP on 24 September 2009 which explicitly said that her sickness leave was related to work-related stress. The Employment Tribunal placed a lot of stress on the fact that some of the absences were what they described as “a surprisingly high number of bouts of flu and debilitating colds”. Ms Donelien argues that if they had read the GP’s letters properly they would have understood that the surprisingly high number of such bouts were side-effects of the underlying health problems. In effect, therefore, she says that the Employment Tribunal made an error of interpretation which is not simply a question of fact. Moreover, she points to an email which she sent to her line manager in May 2009 authorising the employer to ask questions of her own GP.

Thus, she argues that the Employment Tribunal took too narrow a view of what the employer ought reasonably to have known. This is really a question of constructive knowledge. They had constructive knowledge, she argues, because they had the opportunity to ask her GP any questions that they cared to raise. Constructive knowledge includes knowledge that you could have acquired if you had taken up reasonable opportunities to find out and here if the employer had made enquiries of the GP they would have discovered that the absences from work due to colds and flu and so on were side issues. They were not the reasons for the request for adjustments; they were by-products of the underlying condition. That, she argues, was a feature which the Employment Tribunal failed to take into account and either that makes the decision perverse because it ignored relevant evidence or, alternatively, it vitiates the finding of fact which the Employment Tribunal made.

I do not for a moment pretend that this is a straightforward case. It is notoriously difficult to appeal on perversity grounds and the Employment Tribunal, chaired indeed by the President of that Tribunal, delivered a careful judgment dismissing the appeal. What the Employment Tribunal in effect concluded was that the conclusion to which the Employment Tribunal came was one which was partly factual but largely evaluative and they considered that it was not perverse. They thought that the overall picture painted by the Tribunal, relying on what they described as a “panoply of material” put before it was enough to justify the Tribunal’s decision.

Ms Donelien has presented her case most persuasively and contrary to the view that I had when I read the papers, she has persuaded me that there is sufficient in her appeal to warrant consideration by the full court. I do not say that the appeal is going to succeed by any means, but she has persuaded me that I have sufficient unease about the way in which the Employment Tribunal undertook their task as to warrant the grant of permission.

I therefore grant permission to appeal. The appeal should be heard by three judges; one of whom may be a High Court Judge and at least one of whom should have employment experience and I will give it a time estimate of one day.