Donelien v Liberata (UK) Ltd

Permission to appeal may be granted where an employment tribunal’s evaluative finding raises sufficient unease about whether it properly assessed the evidence, even though the proposed appeal faces the high threshold applicable to perversity challenges. An employer’s voluntary adjustments do not, without more, establish that it knew or ought reasonably to have known that an employee was disabled. Such adjustments may reflect good practice or fair treatment rather than a legal obligation.

The Employment Tribunal held that Liberata (UK) Ltd had not breached its duty to make reasonable adjustments under the Disability Discrimination Act. Disability by August 2009 was accepted, but the tribunal found that the employer did not, and could not reasonably be expected to, know of it. The Employment Appeal Tribunal dismissed the appeal, treating the issue as a factual and evaluative finding that was not perverse.

The employee applied to the Court of Appeal for permission to appeal, arguing that the tribunals had misunderstood medical evidence and the scope of constructive knowledge, including the employer’s opportunity to contact her general practitioner.

1. Permission granted. The application was for permission to appeal from the Employment Appeal Tribunal’s dismissal of an appeal concerning constructive knowledge of disability and the duty to make reasonable adjustments.
2. The fact that an employer makes adjustments in practice does not establish that it was under a legal duty to make them. Adjustments may be made as good practice or to treat employees fairly without the employer having the requisite knowledge of disability.
3. The proposed appeal concerned whether the Employment Tribunal had taken too narrow a view of what the employer ought reasonably to have known. The suggested issues included the interpretation of the employee’s general practitioner’s letters, the significance of repeated absences attributed to colds and flu, and the employee’s authorisation for the employer to make enquiries of her general practitioner.
4. An appeal on perversity grounds faces a notoriously difficult and demanding threshold. The Employment Appeal Tribunal had considered the Employment Tribunal’s conclusion to be partly factual but largely evaluative and supported by the overall body of material before it.
5. Despite those difficulties, the employee presented an arguable case. The Court of Appeal had sufficient unease about the way in which the Employment Tribunal had undertaken its task to justify consideration of the appeal by the full court. Permission was granted, with the appeal to be heard by three judges, including at least one judge with employment experience.

• Employment Tribunal: Held that Liberata was not in breach of its duty to make reasonable adjustments under the Disability Discrimination Act.
• Employment Appeal Tribunal: Dismissed the appeal, concluding that the Employment Tribunal’s decision was a factual and evaluative conclusion which could not be described as perverse.
• Court of Appeal (Civil Division): Granted permission to appeal.