Donelien v Liberata UK Ltd

Constructive knowledge under the reasonable-adjustments duty requires knowledge, actual or constructive, of the facts constituting disability, not merely knowledge of a medical label or the legal definition. An employer must make its own factual judgment, but may attach great weight to informed and reasoned occupational-health advice. It cannot simply rubber-stamp an unreasoned opinion. Whether the employer could reasonably have known is a factual assessment. An appellate court asks whether the tribunal’s conclusion was open on the evidence, rather than substituting its own view. Medical ambiguity, employee co-operation, and the distinction between inability and unwillingness may be relevant. A change in working hours does not necessarily establish knowledge of a disability.

The employee appealed to the Court of Appeal from the Employment Appeal Tribunal, which had dismissed her appeal from the Employment Tribunal sitting at London South. The Employment Tribunal had dismissed claims including unfair dismissal and disability discrimination. The appeal concerned only whether the employer could reasonably have been expected to know that the employee was disabled for the purposes of the duty to make reasonable adjustments under the Disability Discrimination Act 1995. The employee relied on medical evidence, workplace adjustments and an invitation to contact her general practitioner. The employer relied on its own enquiries and occupational-health advice. The central issue was whether the Employment Tribunal’s finding of no constructive knowledge was open to it on the evidence.

1. Disposition. The appeal was dismissed. Lord Justice Underhill gave the judgment of the court, and Lord Justices Lindblom and Singh agreed.
2. Statutory question. The relevant knowledge under section 4A(3)(b) of the Disability Discrimination Act 1995 was knowledge of the facts constituting disability: an impairment producing a substantial and long-term adverse effect on normal day-to-day activities, as clarified by Schedule 1. The employer did not need to know the legal conclusion that those facts amounted to disability. The preliminary finding was that the employee became disabled only on or around 20 August 2009.
3. Occupational-health advice. Gallop v Newport City Council [2013] EWCA Civ 1583, [2014] IRLR 211 did not require employers to disregard occupational-health advice. It required the employer to make its own factual judgment and prohibited reliance on an unreasoned opinion as a substitute for that judgment. An employer may attach great weight to an informed and reasoned occupational-health opinion.
4. Application. The Employment Tribunal had considered the occupational-health reports, the employer’s own meetings and enquiries, the general practitioner’s letters, and the employee’s refusal to permit occupational health to contact her general practitioner. The information was unclear and inconsistent, and the Tribunal had to distinguish inability to work from unwillingness to do so. This was not a rubber-stamp case. It was also reasonable for communications with the general practitioner to proceed through occupational health. The assessment of constructive knowledge was factual, and the Court of Appeal could not substitute its own view merely because it might have reached a different conclusion. The Tribunal’s conclusion was open to it on the evidence. Allowing the employee to vary her working hours did not necessarily imply knowledge of a disabling impairment.

• Court of Appeal (Civil Division) dismissed the appeal against the Employment Appeal Tribunal’s decision: [2018] EWCA Civ 129.
• Employment Appeal Tribunal, in a decision dated 16 December 2014, dismissed the employee’s appeal from the Employment Tribunal.
• Employment Tribunal, London South dismissed the claims, including claims of unfair dismissal and disability discrimination.