Donelien v Liberata UK Ltd

An employer’s statutory duty to make reasonable adjustments does not arise where it neither knew, nor could reasonably have been expected to know, the facts constituting the employee’s disability and the relevant substantial disadvantage. The employer bears the burden of establishing that lack of knowledge.

The employer must form its own judgment and cannot delegate the legal question of disability to Occupational Health. Occupational Health advice may nevertheless be important evidence, particularly as to whether an impairment was likely to have a long-term effect. Whether the statutory defence is made out is ordinarily a factual and evaluative question. An appellate tribunal will interfere only for legal error or perversity.

The Employment Tribunal at London (South) dismissed the claimant’s claims under the Disability Discrimination Act 1995, including a claim that her employer failed to make reasonable adjustments.

Although a separate tribunal had retrospectively found that the claimant was disabled by the end of August 2009, the Tribunal held that the employer did not actually know, and could not reasonably have been expected to know, the facts necessary to establish disability at the relevant earlier time. It relied on Occupational Health referrals, return-to-work meetings, discussions and GP letters.

The claimant appealed, contending that the employer had relied improperly on Occupational Health advice and had made insufficient enquiries, contrary to Gallop v Newport City Council [2014] IRLR 211. The central issue was whether the Tribunal had erred in upholding the employer’s lack-of-knowledge defence.

1. Appeal dismissed. The Tribunal’s conclusion that the employer could not reasonably have been expected to know the facts required by section 4A(3) was a factual and evaluative conclusion. It disclosed neither an error of law nor perversity.

2. The employer bore the burden of showing that it was unreasonable to expect it to know that the claimant had a physical or mental impairment with a substantial and long-term adverse effect, and that its provision, criterion or practice placed her at the relevant substantial disadvantage. In the absence of that knowledge, the reasonable-adjustment duty did not arise under Disability Discrimination Act 1995, section 4A.

3. The Tribunal accepted and applied Gallop. The decision whether an employee is disabled for this purpose is for the employer; it cannot be delegated to an Occupational Health adviser. Occupational Health opinion should be respected but not accepted uncritically. Its contemporaneous opinion may be especially valuable where the issue is whether an impairment was likely to continue for 12 months.

4. The Tribunal had not made the error identified in Gallop. It did not treat the Occupational Health conclusion as determinative. It assessed the employer’s own knowledge and reasoning in the light of the full material available at the time, including referrals, meetings, discussions and GP letters. The employer faced several apparently distinct conditions and absences, many attributed to flu, colds or generalised symptoms, rather than a clearly continuing impairment.

5. The Tribunal’s criticism of one Occupational Health letter showed that it had approached that evidence critically. Although another employer might have pursued further questions more vigorously, section 4A(3) requires reasonable enquiry, not perfection. The Tribunal was entitled to find that no more could reasonably have been expected of this employer.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s dismissal of the reasonable-adjustments claim was upheld.
• Employment Tribunal, London (South): by reasons promulgated on 3 January 2014, dismissed all claims, including the claim under the Disability Discrimination Act 1995 for failure to make reasonable adjustments.