Chenembo v London Borough of Lambeth

In a disability discrimination appeal, the tribunal was entitled to find that requiring face-to-face attendance at sickness-review meetings did not place the claimant at a substantial disadvantage. It could assess the medical evidence and the claimant’s conduct across the relevant period, including attendance at other appointments and a job interview. Such factual findings are not open to appellate interference absent irrationality or perversity. A complaint omitted from the issues settled before the tribunal, and not raised in the notice of appeal or permission applications, could not properly be pursued on appeal. The same factual findings would also have defeated the proposed detriment complaint concerning the written warning.

The Employment Tribunal dismissed the appellant’s complaints of disability discrimination and constructive unfair dismissal against her former employer. It found that she was not disabled, but considered the discrimination complaints on the assumption that she was protected by the Disability Discrimination Act 1995. The complaints included failure to make reasonable adjustments in relation to face-to-face meetings and disability harassment.

The Employment Appeal Tribunal dismissed the appeal under UKEAT015713M. It accepted that the ET had not adequately addressed deduced effects when deciding disability, but held that the alternative findings were sufficient unless successfully challenged. Permission to appeal to the Court of Appeal was granted on whether the written warning had been pleaded as a disability detriment and whether the finding concerning attendance at the February 2010 meeting was perverse.

1. Appeal dismissed. Lord Justice McCombe gave the judgment, with which Lord Justice Sales and Lady Justice Arden agreed.
2. The ET was entitled to determine the case by reference to the issues settled at the beginning of the hearing. The settled list included reasonable adjustments and harassment under the Disability Discrimination Act 1995, but did not include the written warning as a separate detriment complaint. No such complaint was raised in the notice of appeal to the EAT or in the applications under the EAT Rules 1993. The EAT was therefore not at fault for failing to determine it.
3. In any event, the substantive challenge failed. The ET’s findings concerning the meetings on 16 and 24 February 2010 would also have determined any detriment complaint arising from the warning. On those findings, the Respondent was entitled to require attendance at a review meeting to address the sickness record, and could not be criticised for issuing a warning in the absence of an explanation that the claimant’s incapacity prevented application of the sickness policy.
4. For the reasonable-adjustments claim, the relevant question was whether the requirement for face-to-face meetings placed the claimant at a substantial disadvantage compared with an able-bodied comparator. The ET was entitled to consider the medical evidence and the claimant’s conduct as a whole during the relevant period. Her attendance at occupational-health appointments and a job interview supported the finding that her impairment did not affect her ability to travel to the extent alleged.
5. The conclusion was a finding of fact. It could not be disturbed by the EAT or the Court of Appeal absent irrationality or perversity. The ET’s reasoning covered both February meetings, not merely the meeting referred to in paragraph 40 of its judgment. The appeal therefore disclosed no material error requiring remittal.

1. Court of Appeal (Civil Division): dismissed the appeal.
2. Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s decision on 10 October 2013, under UKEAT015713M.
3. Employment Tribunal (London South): dismissed the complaints of disability discrimination and constructive unfair dismissal; judgment was sent to the parties on 26 March 2012.