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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Donelien v Liberata UK Ltd  EWCA Civ 129 (08 February 2018)
Cite as:  EWCA Civ 129
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Langstaff J and lay members
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LINDBLOM
LORD JUSTICE SINGH
| EDITH DONELIEN
|- and -
|LIBERATA UK LIMITED
Mr Tom Brown (instructed by Pinsent Masons LLP) for the Respondent
Hearing date: 29th November 2017
Crown Copyright ©
Lord Justice Underhill :
"Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know–
(b) … that [the disabled person concerned] has a disability and is likely to be affected in the way mentioned in subsection (1)."
I will use the shorthand "constructive knowledge" for knowledge that the employer could reasonably be expected to have had. The Appellant's claim under section 4A failed because the ET held that the Respondent did not at any material time know, nor could it reasonably have been expected to know, that she was disabled. The only issue on this appeal is whether that was a finding that was open to it on the evidence.
"Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act … if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."
As regards Schedule 1, I need only refer to paragraph 2 (1), which read:
"The effect of an impairment is a long-term effect if—
(a) if has lasted at least 12 months;
(b) the period for which it lasts is likely to be at least 12 months; or
(c) it is likely to last for the rest of the life of the person affected."
"[Counsel] were agreed as to the law, namely that (i) before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person; and (ii) that for that purpose the required knowledge, whether actual or constructive, is of the facts constituting the employee's disability as identified in section 1(1) of the DDA. Those facts can be regarded as having three elements to them, namely (a) a physical or mental impairment, which has (b) a substantial and long-term adverse effect on (c) his ability to carry out normal day-to-day duties; and whether those elements are satisfied in any case depends also on the clarification as to their sense provided by Schedule 1. Counsel were further agreed that, provided the employer has actual or constructive knowledge of the facts constituting the employee's disability, the employer does not also need to know that, as a matter of law, the consequence of such facts is that the employee is a 'disabled person' as defined in section 1(2). I agree with counsel that this is the correct legal position."
"This lady is a patient registered at our Surgery. I have been treating her since September 2008 for uncontrolled hypertension, stress, low energy levels and tiredness. I initially issued medical certificates for a few weeks off work, because in my opinion she was not fit to attend her regular duties.
Her condition improved and she felt that she would like to return to work initially on a phased plan which I supported. I have initiated pharmacological treatment for her hypertension but her blood pressure remains inadequately controlled. Her treatment is ongoing and I continue to see her at regular intervals to assess her treatment.
I would be most grateful if you could support her return to work in phases. She would like to start off working 3 days per week with immediate effect until her condition responds to treatment."
"She refused to confirm the accuracy of the Respondent's records of her absence without either explanation or any suggestion of what she considered to be accurate. She referred, on a number of occasions, to her desire to speak to the Chief Executive Officer. The Panel found that she used this as a threat. She considered that it had some leverage and traction with Ms Banjo and Ms Prendergast, although it did not."
(The request to see the CEO had its origins in an earlier episode in which his predecessor had apparently told her, albeit in a different context, that if she had problems she should feel free to come to him direct.) The Appellant repeated her unwillingness to have an occupational health assessment, saying that her GP's advice was sufficient. There was discussion about the need for properly certified absences, and the Applicant was asked in particular to phone in by 10 a.m. if she was to be absent on any particular day. As the ET found at para. 48:
"The Claimant explained that she was not ringing in by 10 a.m. as required by the policy and she was not prepared to put herself under that pressure and in any event her manager was not always in at 10 a.m. either."
The meeting was very difficult, and the Tribunal found that the Appellant had made a number of contradictory points.
"This lady is a patient registered at our Surgery. I wrote to you in January 2009 to enlist your support in her management. The treatment of hypertension and stress is ongoing. Although we have made some progress, she is still not able to resume full working duties.
Control of her hypertension is suboptimal and she continues to have difficulty finding a drug regime which she tolerates.
I would be most grateful if you could continue to support her, by allowing her to work a 3 day week."
The Appellant forwarded the letter to Ms Prendergast on 19 May 2009 under cover of a letter from herself saying:
"If you are not happy with the information contained in this letter, please detail your concerns in writing addressed to my GP and provide me with a copy."
"As always, the issue of consent was discussed with the employee. Miss Donelien has given consent to provide a report to the employer only, but not to obtain further information. She has requested a copy of this report.
Reason for referral:
Miss Donelien has had several episodes of absence recently, and her working pattern has been irregular. The company wish to understand more about the cause of her absence.
Miss Donelien has been under treatment by her General Practitioner for high blood pressure. She has been experiencing side effects whilst on treatment, and has found the medication is difficult to tolerate. She currently takes 3 medications, and her blood pressure remains high. There are a number of other issues which are contributing to her persistently raised blood pressure, and these appear to be related to problems at work which are causing distress. You make reference to the delay in addressing a salary issue and the delay in having a formal return to work interview in your referral and these are major contributions to a level of distress. There appear to have been a number of difficulties in communication between her and the HR Department. These will be well known to you and have been the subject of a number of conversations between you.
Maitland Medical Opinion
Whereas the immediate reason of her absence is her hypertension, for which her General Practitioner has provided certification. It is unlikely that full resolution can be achieved without addressing the underlying employment issues. These have not yet been adequately resolved to her satisfaction, and clearly were the cause of much greater concern during this consultation. She tells me that she wants to 'move forward' and she explained to me that she feels she needs to speak to the Director. She also feels that she needs the HR Department to facilitate that for her. She also explained why she feels she would not be able to carry our her normal duties on the day she meets the Director."
As appears from the opening paragraph of that letter, the Appellant had not been prepared to allow Dr Bellamy to contact her GP. (I should mention for completeness that the Claimant's evidence to the ET was that that was wrong, but it did not accept her evidence, not least because she had signed a consent form endorsed in manuscript "consent is not given to write to my GP at this stage".) He had accordingly not seen anything from the GP except the letter of 15 May 2009 which Ms Prendergast had sent him: she had not sent the letter of 15 January, apparently because she thought that it did not add anything (and it was of course less recent). Dr Bellamy's opinion was thus based largely on what he had learnt from the Appellant herself.
"High levels of absence for a mix of reasons (as your referral note references) and now part-time working for many weeks and months is clearly an unsatisfactory state of affairs for the employee and employer. I would respectfully say the rather vague references to hypertension and 'stress' are not enough and to be simply expected to 'support' the employee as the GP hopes without sufficient information to see if this is relevant and an appropriate way forward may not be appropriate.
I will leave it to you to consider for how long you can continue to support what I do acknowledge is a non-satisfactory state of affairs, but my view is that a resolution should be sought and simply watching and waiting is not the way forward that I would recommend."
"The Claimant asserted that her medical problems were caused by the Company. She was very critical of the HR team and said that using the Company's procedures was detrimental to her health. She said she was going to speak to the CEO and that they (Ms Prendergast and Ms Banjo) would find out what her concerns were from him, which was expressed as a threat. Although the Claimant stated that the Respondent had not respected the DDA, she did not directly challenge the Occupational Health conclusion that she was not disabled and did not elaborate further on her symptoms beyond saying that she could not ring up before 10.00 am when she was going to be late since it caused her stress that made her ill. She reiterated that she was willing only to work three days a week starting at 1.00pm and that a leeway should be given in case of travel disruptions, so she might not be able to arrive exactly at 1.00pm but would be later sometimes. She said that she would not be working on Mondays and Fridays. Ms Banjo with the support of Ms Prendergast had already explained that the Respondent would not be able to support a three day working going forward and the Claimant will be expected to work her normal contractual hours and to arrive by 10.00 am. In the event of her not being able to arrive by 10.00 am she must notify in accordance with the absence and attendance policy and procedure. The claimant appeared to have taken no notice of what Ms Banjo and Ms Prendergast had said to her, nor the contents of their previous letters."
"Ms Donelien reports that her GP has certificated her because of physical symptoms which she attributes to stress; she tells me that alterations in her medication have been made. During the conversation this lady repeatedly attempted to discuss specific managerial and internal company issues relating to the grievance and disciplinary hearings. The focus of this report however was to assess her medical circumstances.
She reported that her physical symptoms have been caused by the issues at work and in her opinion she is unable to attend. She referenced that she felt it would be 'too much' to attend both, within a short time frame. It was explained to Ms Donelien that in order to address the work issues, the grievance and disciplinary would need to take place.
Unfortunately we have been unable to obtain any information from her GP regarding her physical symptoms and treatment. She has stated on the form 'consent not given to write to my GP at this stage'. This has of course limited our ability to consider in full her medical circumstances.
In my opinion this lady was able to give a full account of herself. She expressed her thoughts and opinions clearly, coherently and forcefully. On this basis therefore, I believe that she is fit to attend the grievance and disciplinary meeting with the support of a representative if she feels this would be helpful or alternatively suggest that she be invited to participate in writing."
"Looking through her records, her sickness leave is related to work related stress. It has been documented in her notes that she had seen Occupational Health, as well as her line manager, and was waiting to see her Chief Executive to address her work related issues. She recently had quite regular contact with her General Practitioner to get support and have the opportunity discuss the effect of the stress at work on her well-being. I agree with Dr John Brennan (Maitland Medical Services Ltd) her work related problems should be dealt with soon as possible."
"I do not think the report that has been forwarded to you from the GP alters our advices.
Put simply this lady has had very high levels of sporadic short term absences over the last year, most recently now linked to 'stress'.
Obviously it is impossible for me to comment directly upon what she believes that 'work related' stress is but what we do know is that early resolution (whatever the conclusion) is essential to avoid escalation of any emotional/psychological problems. The GP seems to agree with that statement:
'Her work related problems should be dealt with as soon as possible'.
Once again the detail and possible solutions would seem to be something that might only resolve in dialogue between her and the Company.
I am equally not sure whether Ms Donelien is attributing all her prior absence, multiple short term, to 'work related stress'. Certainly the reasons have been quite different. That needs to be clarified also in any conversations I would suggest."
THE TRIBUNAL PROCEEDINGS
"4. The medical evidence provided indicates that the Claimant's symptoms/conditions of hypertension; asthma; stress; tiredness and, possibly, depression, were present from at least September/October 2008, for which the Claimant received on-going treatment by way of medication. The Claimant stated in evidence that there had been no charge in her symptoms since then except that she has learned how to manage them. In addition, her impact statement setting out the effects on her day to day activities, which I have already found to be substantial, were present in September/October 08.
5. I am therefore satisfied that by end of August 2009, at the latest, the substantial effect of the impairments on normal day to day activities would have lasted for 12 months."
That would appear to mean that the Appellant was disabled from the beginning of September 2009, because by that time her symptoms had lasted for twelve months, in accordance with paragraph 2 (1) (b) of Schedule 1 to the Act. It appears to have been common ground by the time of the substantive hearing that the relevant date was in fact 20 August 2009; I am not sure why, but nothing turns on the precise date. It should be noted that Judge Balogun did not apparently consider that the Appellant's impairment was at any stage prior to that date "likely" to continue for twelve months so that head (c) of paragraph 2 (1) applied.
"We now know that Dr Brennan and Occupational Health were wrong in so far as they suggested that the Claimant was not disabled after 20 August 2009, although he was right when he wrote his report in July of that year. Is the Respondent able to plead ignorance now based on their OH advice coupled with their own knowledge of the reasons for the Claimant's absences? The advice they were getting from Occupational Health, chimed with their own experience and impression and the two letters that they had received from the GP, were all consistent in saying although the Claimant had a number of health difficulties, and stress and anxiety, it fell short of coming under the definition of disability. We consider that the Respondent did all they could reasonably be expected to have done to find out about the true nature of the health problems the Claimant was experiencing by their referral to Occupational Health, their return to work meetings and discussions with her and by looking at the letters that the Claimant asked her GP to write to them and they could not reasonably be expected to have done more. On the facts known to the Respondent, it was not likely that the health problems and symptoms would extend to 12 months bringing the Claimant within the ambit of the DDA 1995. Furthermore many of the absences were not for the impairments which gave rise to disability, but the surprisingly high number of bouts of flu and debilitating colds, and very generalised references to stress and anxiety, which would not ordinarily lead an employer to think an employee is disabled. The Respondent was not assisted by the Claimant's attitude of confrontation and lack of co-operation with them and her refusal to allow the OH providers to contact her GP."
"[OH's] opinions amounted to no more than assertions of their view that the DDA did not apply to Mr Gallop, or that he was not 'covered' by it or words to that effect. No supporting reasoning was provided. As the opinions were those of doctors, not lawyers, one might expect them to have been focussed on whether, from the medical perspective, the three elements of section 1 were or were not satisfied. Since, however, OH made no reference to such elements, neither [the employer] nor the ET could have had any idea whether OH considered (i) that Mr Gallop had no relevant physical or mental impairment at all; or (ii) that he did, but its adverse effect on his ability to carry out normal day-to-day duties was neither substantial nor long-term, or (iii) that he did, but it had no effect on his ability to carry out such duties. OH's opinion was, with respect, worthless. For reasons indicated, [the employer] had to form its own judgment on whether Mr Gallop was or was not a disabled person; and OH's views on that topic were of no assistance to them."
(I should say, in case I am thought to have omitted something of relevance, that the phrase "for reasons indicated" does not appear to refer to any earlier specific passage.) In the "Conclusion" section of his judgment (at p. 217) Rimer LJ said:
"41. … [T]he task for the ET was to ascertain whether, at the material times, [the employer] had actual or constructive knowledge of the section 1/Schedule 1 facts constituting Mr Gallop's disability. The ET did not engage in that inquiry. It considered that [the employer] was entitled to deny relevant knowledge by relying simply on its unquestioning adoption of OH's unreasoned opinions that Mr Gallop was not a disabled person. In that respect the ET was in error; and the EAT was wrong to agree with the ET.
42. This may perhaps seem a hard result, but I consider it follows from the terms of the legislation. The problem with certain types of disability, or claimed disability, is that it is only when eventually the ET rules on the question that it is known whether the claimant was in fact a disabled person. In the meantime, however, the responsible employer has to make his own judgment as to whether the employee is or is not disabled. In making that judgment, the employer will rightly want assistance and guidance from occupational health or other medical advisers.
43. That assistance and guidance may be to the effect that the employee is a disabled person; and, unless the employer has good reason to disagree with the basis of such advice, he will ordinarily respect it in his dealings with the employee. In other cases, the guidance may be that the opinion of the adviser is that the employee is not a disabled person. In such cases, the employer must not forget that it is still he, the employer, who has to make the factual judgment as to whether the employee is or is not disabled: he cannot simply rubber stamp the adviser's opinion that he is not."
The case was remitted to the ET.
"… [T]he fact that the Tribunal had misgivings about Dr Brennan's letter and were prepared to criticise it demonstrates that it took a view which was itself healthily critical of the information which the employer had had. It was in the light of its views in that respect, rather than any uncritical acceptance of Occupational Health reports, that it concluded both that the [Respondent] could not reasonably be expected to know the matters referred to in section 4A(3) but also that the employer, taken overall, could not be expected to have done more. The test is not set at that height, which is a counsel of perfection. The test is one of reasonableness. The Tribunal applied it. We cannot say that its answer was wrong."
Lord Justice Lindblom:
Lord Justice Singh: