Donnelly v Environment Agency

An appellate challenge to a Polkey assessment fails where the Employment Tribunal's finding that there was no realistic prospect of a return to work was open to it on the evidence. A disputed expert opinion may be accepted where the tribunal has the relevant records, has heard evidence and cross-examination, and has made permissible credibility findings. Fresh material does not justify interference unless it meets the Ladd v Marshall criteria and could have influenced the result.

A factual error about the precise timing or characterisation of an ill-health retirement request does not vitiate the decision where it was one of several relevant factors and does not undermine the tribunal's substantive conclusion.

The Claimant succeeded before the Liverpool Employment Tribunal in claims for unfair dismissal and disability discrimination. At the remedy hearing, the Tribunal awarded a basic award and injury to feelings but made no compensatory award for loss of earnings. It found that, although dismissal would have been delayed, the Claimant had no realistic prospect of returning to work and would inevitably have been dismissed by May 2011.

The Claimant appealed the refusal of loss-of-earnings compensation. She contended that the Tribunal had wrongly relied on a psychiatric expert's opinion founded on inaccurate clinical records, and had misstated the timing of her ill-health retirement application. The central issue was whether either alleged error invalidated the Tribunal's Polkey conclusion.

1. Appeal dismissed. The Employment Tribunal was entitled to accept Dr Faith's expert evidence. The disputed clinical records, the Claimant's objections to them, Dr Faith's reports and addendum, and the relevant oral evidence had all been before the Tribunal. The Claimant had been able to challenge the material and Dr Faith had been cross-examined.

2. The Tribunal had permissibly formed an adverse view of the Claimant's credibility. Dr Faith's opinion had an explained basis and was within her expertise. Another expert or tribunal might have taken a different view, but acceptance of that opinion was not perverse.

3. To the extent that the later NHS letter was relied upon as fresh evidence, it did not satisfy the materiality limb of the Ladd v Marshall principles. It added nothing material to the dispute about the records already fully before the Tribunal and could not have influenced its conclusion. In any event, the Tribunal had several independent grounds for its Polkey finding, including the duration of absence, credibility findings, lack of suitable alternative work and the Claimant's stance in correspondence.

4. The Tribunal may have inaccurately described an expression of interest in ill-health retirement as a formal application, and may have placed it before the appeal hearing rather than before communication of the appeal outcome. The error was immaterial. The pre-outcome expression of interest was relevant evidence that the Claimant could not return to work, and it was only one of many factors supporting the conclusion that dismissal by May 2011 was inevitable.

• Employment Appeal Tribunal: appeal dismissed: [2015] UKEAT 0361_14_1603.
• Liverpool Employment Tribunal: upheld claims of unfair dismissal and disability discrimination, but at remedy made no compensatory award for loss of earnings. Its remedy judgment was sent to the parties on 1 April 2014.