This is an appeal, with permission from Lewison LJ, against a decision of the Employment Appeal Tribunal, comprising Langstaff J, the then President, Mr David Bleiman and Mr Peter Gammon MBE, dated 16 December 2014. The EAT dismissed an appeal from an Employment Tribunal sitting at London South, chaired by Employment Judge Stacey, which dismissed the Appellant’s claims of unfair dismissal, disability discrimination, “whistleblower detriment” and unlawful deduction of wages.

The Appellant has appeared in person, as she did in the ET, though she was represented by counsel in the EAT. She made her submissions with conspicuous ability. The Respondent has been represented by Mr Tom Brown of counsel, who has appeared for it throughout.

Although there were a number of issues before the ET we are now only concerned with a single point arising in connection with the Appellant’s disability discrimination claim. It was her case that the Respondent failed to make reasonable adjustments in accordance with the duty then contained in section 4A of the Disability Discrimination Act 1995. It was decided at a preliminary hearing before Employment Judge Balogun, and is not now in issue, that the Appellant was in the last two months of her employment suffering from a disability: I return in due course to its nature. Section 4A (1) provided that an employer must take reasonable steps to prevent a disabled employee from being put at a disadvantage by a provision criterion or practice applied by it. But sub-section (3) (b) provided that:

It is convenient at this stage to refer to the definition of disability in the 1995 Act. Section 1 (1) provided that:

Accordingly, the knowledge in question for the purpose of section 4A (3) is knowledge that the employee had an impairment with those characteristics. The position is summarised by Rimer LJ in Gallop v Newport City Council[2013] EWCA Civ 1583, [2014] IRLR 211. At para. 36 of his judgment (p. 217), he says:

The issue being limited in that way, I need only set out the facts as found by the ET relevant to the issue of constructive knowledge. I emphasise that I am not seeking to give a comprehensive summary.

The Respondent is a large business providing outsourcing and business services. The Appellant was first employed by it in 1999 in its then incarnation as “CSL”, working in a team specialising in housing benefit and council tax. From 2004 she was a “Court Officer”, preparing and presenting cases on those matters for the London Borough of Southwark. She was able and good at her job. She was a union representative, and active in various matters in that capacity.

From the second half of 2008 onwards the Appellant began to arrive at work late or leave early or take whole days off work. She told her managers that she was suffering from low energy levels and tiredness in the morning and that the problem was related to high blood pressure. She also suffered dizzy spells and breathing problems. She sometimes took time off without any prior notice. After a period of sickness in November she told her manager at her return to work interview that her illness was work-related: the quantity and pace of work was too high, there was a shortage of resources and the office was too stuffy. She said that she felt exposed to long-term stress and felt burnt out. Her sick notes from the period mostly refer either to hypertension or to viral illness.

Following a further absence her GP wrote to the Respondent on 15 January 2009. His letter reads:

The Respondent agreed to a phased return to work, with the Appellant not working on Mondays or Fridays. However, her health problems continued. In February 2009 the Respondent suggested a referral to an outside occupational health specialist, but the Appellant was uncooperative, saying that her GP’s letter told the Respondent all it needed to know. An absence interview planned for 5 March 2009 could not go ahead because the Appellant was unwell.

There was a further period of absence between 6 April and 17 April 2009. The Appellant’s GP wrote on 20 April saying that she had presented with a history of a stomach upset which, although it had settled, was “followed by a feeling of generally unwell along with … right wrist pain”. The letter explained that the GP had found no underlying wrist problem and had reassured the Appellant and told her that she could go back to work.

When the postponed absence interview was finally held on 14 May 2009, with the Appellant’s manager, Ms Banjo, and the responsible HR Manager, Ms Prendergast, the ET found that the Appellant was uncooperative and somewhat confrontational. It said, at para. 44 of the Reasons:

The following day, 15 June 2009, the Appellant’s GP gave her a letter addressed to the Respondent’s HR Department, which read as follows:

The Respondent did not take up the offer itself to communicate with the Appellant’s GP. It preferred instead to refer the matter to occupational health consultants who would liaise with the GP if necessary. A consultation was accordingly arranged with occupational health specialists called Maitland Medical Services on 11 June 2009. In advance of the consultation Ms Prendergast outlined to Maitland the history of the problem, including that the Appellant had complained of stress at work; she asked a number of questions, including how long the Appellant’s condition was likely to last, whether she had “a condition which would be recognised as a disability under the DDA” and, if so, whether there were any adjustments that could be recommended.

The Appellant was seen by a Dr Bellamy of Maitland. He provided a report dated 18 June 2009, which reads as follows:

That report did not fully answer Ms Prendergast’s questions, and she accordingly contacted Maitland again. On 6 July 2009 a Dr Brennan, who had discussed the case with Dr Bellamy, wrote at greater length. The gist of his opinion was that the essential problem was “managerial rather than medical”. He believed that the Appellant’s “issues” were “linked … to some … dispute with the company rather than any underlying psychiatric condition or indeed primarily to her high blood pressure”. He said that hypertension was “an extremely unlikely cause of long term certification” and that there was “no evidence of any underlying psychiatric condition”. He said that there was no reason, on the available evidence, to believe that the Appellant was suffering from a “DDA qualifying (mental and nervous) problem”. He concluded:

The Appellant was off sick from 14 July to 3 August 2009 with epigastric pain and dyspepsia. She had a further meeting with Ms Prendergast and Ms Banjo on 5 August. The Tribunal’s findings about that meeting are at para. 71 of the Reasons and read:

The Appellant was off sick again from 6 August 2009. When she returned to work on 18 August she had an interview with Ms Banjo which the Tribunal described as “unproductive”. In consequence the Respondent decided to institute disciplinary proceedings. The Appellant was invited to a meeting on 24 August to discuss allegations of unsatisfactory attendance and failure to comply with notification procedures. She responded, repeating her earlier invitation that the Respondent write to her GP. Ms Prendergast replied saying that they would not be doing so since they were taking their advice from Maitland.

The Appellant did not attend the disciplinary meeting on 24 August 2009 and was off sick for the rest of the month and the rest of September. She had a telephone consultation with a nurse from Maitland on 10 September 2009. Her report reads, so far as material:

That report was sent to the Appellant, who on 23 September 2009 wrote to Dr Brennan criticising various aspects of it. Among other things she said that “the company had written consent to write my GP”, and also that she had already given consent to Maitland to do so. She also supplied a further report from her GP, which, after recording her recent investigations and treatment, said:

The Respondent forwarded the GP’s letter to Maitland. On 8 October 2009 Dr Brennan wrote saying:

The postponed disciplinary hearing eventually took place on 22 September 2009. Since we are not concerned with the claim of unfair dismissal, and only with the question of whether the Respondent could reasonably have been expected to know that the Appellant was disabled, I need not give details of what transpired. In short, it was decided following the hearing that she would be dismissed for failure to work her contracted hours and failure to comply with the notification procedures for sickness absence.

The Appellant commenced her proceedings on 25 January 2010. The Respondent did not accept that she had at any material time been disabled within the meaning of the 1995 Act. That issue was listed for determination at a pre-hearing review before Employment Judge Balogun in September 2012. There was unfortunately some doubt as to the effect of her decision, but in a review decision dated 10 October 2013 she attempted to clarify what she had meant. Paras. 4-5 of her decision read:

The full hearing took place over several days in late October and early November 2013. As I have said, the Judgment was sent to the parties on 3 January 2014. The Tribunal dealt with the disability discrimination claim at paras. 150-156 of its Reasons. For present purposes I need refer only to para. 152, which reads:

I need not at this stage refer to the judgment of the EAT, since the focus of this appeal must inevitably be on whether there was any error of law in the reasoning of the ET.

The Appellant’s grounds of appeal and skeleton argument are not drafted quite as a lawyer would have done, but I will deal in turn with the various points she makes, taking first those that seemed to Lewison LJ (and also to Judge Richardson, who permitted the appeal to proceed at the sift stage in the EAT) to be the most arguable.

I need to make an important point by way of preliminary. The issue for the ET was what the Respondent could reasonably have been expected to know. Tribunals frequently have to make assessments of reasonableness of that kind, and it is well established that the exercise is factual in character and cannot be challenged on appeal only on the basis that the appellate tribunal might have made a different judgment.

First, the Appellant argues that a reasonable reading of her GP’s letters should have led the Respondent to conclude that she was suffering from an impairment which had a substantial and long-term effect on her ability to carry out day-to-day activities. As to that, the starting-point must be that on Judge Balogun’s findings she was not in fact suffering from a disability until 20 August 2009, so that only the last of the letters, i.e. that dated 24 September, is directly relevant: a reasonable reading of the earlier letters could not have led the Respondent to “know” something which was not in fact the case. I accept nevertheless that they provide an important part of the background to what the Respondent ought to have known in September or October 2009: although they describe symptoms that might at the time have appeared short-term, the position had changed when her absences had been continuing for over a year, and it could be argued that they should have been reconsidered.

In assessing that argument two points need to be borne in mind. First, the letters do not give a clear or consistent picture. The first, dated 15 January 2009, appears to treat the Appellant’s symptoms as principally the result of high blood pressure, though there is also reference to “stress, low energy levels and tiredness”. The second, dated 20 April, is concerned with self-limiting stomach problems and wrist pain. The third, dated 15 May, reverts to the reference to high blood pressure and stress. The last letter, while it summarises her recent history, including her treatment for high blood pressure, says that “her sickness leave is related to work related stress”. In addition to the letters, the sick notes refer to a wide range of further symptoms and conditions. It is hard for a layman to know what to make of all that. That leads to the second point, which is that the Respondent was not dependent on the GP letters. It sought the advice of outside occupational health consultants. Those consultants not only advised in terms that the Appellant was not disabled within the meaning of the Act (and did not modify that advice after 20 August 2009); they also suggested that she was not in fact suffering from any mental or physical impairment at all, or in any event one which had a substantial impact on her ability to carry out day-to-day activities – her problems were “managerial not medical”. I will come back to the question of the extent to which the Respondent was entitled to rely on that advice; but, to the extent that it was, the advice is highly relevant to the question of what it could reasonably have been expected to conclude from the GP letters.

The Appellant’s second point is that she had invited the Respondent to approach her GP if it wanted any further information about her condition. That is true, but it is not the whole story. When she first made the offer, in May 2009, she was not in fact disabled, so that even if it had been taken up it would not have led to the Respondent acquiring the relevant knowledge. But she repeated the offer on 20 August 2009, so perhaps the more important point is that it seems to me – as it evidently did to the ET – plainly reasonable for the Respondent to take the position that it did, i.e. that any communications with the Appellant’s GP should be via their occupational health consultants, who could deal with the GP doctor-to-doctor. And regrettably, as the ET found, the Appellant refused to allow Maitland to contact her GP; although in her later letter to Dr Brennan she said that she had, that was not accepted by the ET.

The Appellant’s third point depended on the decision of this Court, to which I have already referred, in Gallop, which was decided since the hearing in the ET. In that case the employee had been suffering depressive symptoms for several years, which had been held, as from a specified date, to amount to a disability. The issue was whether the employer should have known that he was suffering from that disability. It had engaged occupational health consultants (“OH”), who had repeatedly advised, but without any explanation or analysis, that he was not. The ET found that section 4 (3A) (b) was satisfied, essentially because the employer was entitled to rely on OH’s view unless it was obviously wrong; and the EAT upheld that finding. This Court held that the ET was not entitled to reach its conclusion on that basis. Rimer LJ, with whose judgment the other members of the Court agreed, said at para. 40 (p. 217):

It seems that there was some concern following the decision in Gallop that it raised a serious question about whether employers in a case of this kind were entitled to attach weight to advice from occupational health consultants about whether an employee was suffering from a disability within the meaning of the 1995 Act. It was explicitly for that reason that Judge Richardson, when permitting the appeal in the EAT to proceed, directed that it be heard by a tribunal that included lay members. In my view it is plain that Rimer LJ did not intend generally to discount the value of such advice. The basis on which the employee’s appeal was allowed was that the ET had found that the employer was entitled to rely, and rely exclusively, on the opinion of the occupational health advisers in circumstances where that opinion was worthless because it was unreasoned. That is perhaps most clear from para. 42 of Rimer LJ’s judgment (“relying simply on its unquestioning adoption of OH’s unreasoned opinion”) but equally from paras. 40 and 43 (“he cannot simply rubber-stamp the adviser’s opinion”). That is very far from saying that an employer may not attach great weight to the informed and reasoned opinion of an occupational health consultant. That was the view of the EAT, and in particular of the lay members, in the present case. Having expressed at para. 30 of his judgment essentially the same view as me about the ratio of Gallop, Langstaff J went on to say, at para. 31, that while an ET will “look for evidence that the employer has taken its own decision … the lay members sitting with me in this case would wish to emphasise that in general great respect must be shown to the views of an Occupational Health doctor”, though such views should not be followed uncritically.

Taking that approach to the present case, I do not believe that the ET fell into the same error as the tribunal in Gallop. At para. 152 of its Reasons it did not treat the fact that the Respondent had received advice from occupational health consultants as conclusive. It said in terms that Maitland’s advice “chimed with their own experience and impressions, and the two letters that they had received from the GP”, and it emphasised that they not only took occupational health advice but had their own meetings with the Appellant and took account of the GP letters. I should also say that it expressly approved the summaries of the relevant information which Ms Prendergast gave to Maitland on each occasion that she sought their advice; and it will be noted that when Dr Bellamy’s initial report proved unsatisfactory Ms Prendergast went back to Maitland for clarification. This was clearly not a “rubber stamp” case.

The Appellant draws attention, as her counsel did in the EAT, to the fact that the ET at para. 153 of its Reasons expressed some misgivings about Dr Brennan’s letter of 6 July 2009, both (a) because he expressed an opinion without having met the Appellant (though he had of course spoken to Dr Bellamy) and (b) because parts of his letter appeared to concentrate on “cause rather than effect”. But it is clear that the ET did not regard that fact as undermining its conclusion in its previous paragraph, and I do not believe that it did so. At para. 36 of his judgment Langstaff J said:

The Appellant’s next point is that the Respondent must, or certainly should, have known that she was suffering from a disability because since the autumn of 2008 her manager had allowed her to start late because she complained of tiredness in the morning. But making a change of that kind in an employee’s working hours does not necessarily imply any knowledge of an impairment sufficiently substantial to constitute a disability. And in any event the unchallenged finding of Judge Balogun is that the Appellant was not disabled at that time.

I stand back from all of this and revert to the point which I made earlier. It is not for this Court to decide whether it might have found that the Respondent could reasonably have been expected to know in September or October 2009 that the Appellant was suffering from a disability. The question is whether it was open to the ET, on the evidence that it heard, to find that it could not. It will be apparent from what I have said already that the Respondent was presented with a good deal of not very clear information, and getting a good understanding of it was not helped by the Appellant’s rather uncooperative and confrontational stance. The EAT also endorsed a submission made by Mr Brown that not all of the Appellant’s absences reflected her being truly unable to work: there was an element of unwillingness too, mixed in with her substantive complaints about pay and working conditions. As it observed, the ET had to disentangle what the Appellant could not do from what she would not do. This is not an easy exercise: employers are not doctors, or psychologists.

In those circumstances I have no difficulty understanding why the ET came to the conclusion that it did that the Respondent “did all they could reasonably be expected to have done to find out about the nature of the health problem that the Claimant was experiencing”. This Court should be very slow, absent any explicit misdirection, to depart from the considered assessment of an experienced employment judge and two lay members, endorsed by the President of the EAT and two lay members. Even if – which I am not saying is the case – I would have reached a different conclusion from the ET I am quite sure that it was entitled to reach the decision which it did.

I would therefore dismiss this appeal.

I agree.

I also agree.