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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 [2018] EWCA Civ 129 (08 February 2018) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/129.html Cite as: [2018] EWCA Civ 129

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Langstaff J and lay members

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/02/2018

Lord Justice Underhill :

INTRODUCTION

1. This is an appeal, with permission from Lewison LJ, against a decision of the Employment Appeal Tribunal, comprising Langstaff J, the then President, Mr David Bleiman and Mr Peter Gammon MBE, dated 16 December 2014. The EAT dismissed an appeal from an Employment Tribunal sitting at London South, chaired by Employment Judge Stacey, which dismissed the Appellant's claims of unfair dismissal, disability discrimination, "whistleblower detriment" and unlawful deduction of wages.
2. The Appellant has appeared in person, as she did in the ET, though she was represented by counsel in the EAT. She made her submissions with conspicuous ability. The Respondent has been represented by Mr Tom Brown of counsel, who has appeared for it throughout.
3. Although there were a number of issues before the ET we are now only concerned with a single point arising in connection with the Appellant's disability discrimination claim. It was her case that the Respondent failed to make reasonable adjustments in accordance with the duty then contained in section 4A of the Disability Discrimination Act 1995. It was decided at a preliminary hearing before Employment Judge Balogun, and is not now in issue, that the Appellant was in the last two months of her employment suffering from a disability: I return in due course to its nature. Section 4A (1) provided that an employer must take reasonable steps to prevent a disabled employee from being put at a disadvantage by a provision criterion or practice applied by it. But sub-section (3) (b) provided that:

"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–

(a) …

(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.

4. It is convenient at this stage to refer to the definition of disability in the 1995 Act. Section 1 (1) provided that:

"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."

5. Accordingly, the knowledge in question for the purpose of section 4A (3) is knowledge that the employee had an impairment with those characteristics. The position is summarised by Rimer LJ in Gallop v Newport City Council [2013] EWCA Civ 1583, [2014] IRLR 211. At para. 36 of his judgment (p. 217), he says:

"[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."

THE FACTS

6. The issue being limited in that way, I need only set out the facts as found by the ET relevant to the issue of constructive knowledge. I emphasise that I am not seeking to give a comprehensive summary.
7. The Respondent is a large business providing outsourcing and business services. The Appellant was first employed by it in 1999 in its then incarnation as "CSL", working in a team specialising in housing benefit and council tax. From 2004 she was a "Court Officer", preparing and presenting cases on those matters for the London Borough of Southwark. She was able and good at her job. She was a union representative, and active in various matters in that capacity.
8. From the second half of 2008 onwards the Appellant began to arrive at work late or leave early or take whole days off work. She told her managers that she was suffering from low energy levels and tiredness in the morning and that the problem was related to high blood pressure. She also suffered dizzy spells and breathing problems. She sometimes took time off without any prior notice. After a period of sickness in November she told her manager at her return to work interview that her illness was work-related: the quantity and pace of work was too high, there was a shortage of resources and the office was too stuffy. She said that she felt exposed to long-term stress and felt burnt out. Her sick notes from the period mostly refer either to hypertension or to viral illness.
9. Following a further absence her GP wrote to the Respondent on 15 January 2009. His letter reads:

"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."

10. The Respondent agreed to a phased return to work, with the Appellant not working on Mondays or Fridays. However, her health problems continued. In February 2009 the Respondent suggested a referral to an outside occupational health specialist, but the Appellant was uncooperative, saying that her GP's letter told the Respondent all it needed to know. An absence interview planned for 5 March 2009 could not go ahead because the Appellant was unwell.
11. There was a further period of absence between 6 April and 17 April 2009. The Appellant's GP wrote on 20 April saying that she had presented with a history of a stomach upset which, although it had settled, was "followed by a feeling of generally unwell along with … right wrist pain". The letter explained that the GP had found no underlying wrist problem and had reassured the Appellant and told her that she could go back to work.
12. When the postponed absence interview was finally held on 14 May 2009, with the Appellant's manager, Ms Banjo, and the responsible HR Manager, Ms Prendergast, the ET found that the Appellant was uncooperative and somewhat confrontational. It said, at para. 44 of the Reasons:

"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.

13. The following day, 15 June 2009, the Appellant's GP gave her a letter addressed to the Respondent's HR Department, which read as follows:

"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."

14. The Respondent did not take up the offer itself to communicate with the Appellant's GP. It preferred instead to refer the matter to occupational health consultants who would liaise with the GP if necessary. A consultation was accordingly arranged with occupational health specialists called Maitland Medical Services on 11 June 2009. In advance of the consultation Ms Prendergast outlined to Maitland the history of the problem, including that the Appellant had complained of stress at work; she asked a number of questions, including how long the Appellant's condition was likely to last, whether she had "a condition which would be recognised as a disability under the DDA" and, if so, whether there were any adjustments that could be recommended.
15. The Appellant was seen by a Dr Bellamy of Maitland. He provided a report dated 18 June 2009, which reads as follows:

"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.

Summary

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.

16. That report did not fully answer Ms Prendergast's questions, and she accordingly contacted Maitland again. On 6 July 2009 a Dr Brennan, who had discussed the case with Dr Bellamy, wrote at greater length. The gist of his opinion was that the essential problem was "managerial rather than medical". He believed that the Appellant's "issues" were "linked … to some … dispute with the company rather than any underlying psychiatric condition or indeed primarily to her high blood pressure". He said that hypertension was "an extremely unlikely cause of long term certification" and that there was "no evidence of any underlying psychiatric condition". He said that there was no reason, on the available evidence, to believe that the Appellant was suffering from a "DDA qualifying (mental and nervous) problem". He concluded:

"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."

17. The Appellant was off sick from 14 July to 3 August 2009 with epigastric pain and dyspepsia. She had a further meeting with Ms Prendergast and Ms Banjo on 5 August. The Tribunal's findings about that meeting are at para. 71 of the Reasons and read:

"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."

18. The Appellant was off sick again from 6 August 2009. When she returned to work on 18 August she had an interview with Ms Banjo which the Tribunal described as "unproductive". In consequence the Respondent decided to institute disciplinary proceedings. The Appellant was invited to a meeting on 24 August to discuss allegations of unsatisfactory attendance and failure to comply with notification procedures. She responded, repeating her earlier invitation that the Respondent write to her GP. Ms Prendergast replied saying that they would not be doing so since they were taking their advice from Maitland.
19. The Appellant did not attend the disciplinary meeting on 24 August 2009 and was off sick for the rest of the month and the rest of September. She had a telephone consultation with a nurse from Maitland on 10 September 2009. Her report reads, so far as material:

"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."

20. That report was sent to the Appellant, who on 23 September 2009 wrote to Dr Brennan criticising various aspects of it. Among other things she said that "the company had written consent to write my GP", and also that she had already given consent to Maitland to do so. She also supplied a further report from her GP, which, after recording her recent investigations and treatment, said:

"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."

21. The Respondent forwarded the GP's letter to Maitland. On 8 October 2009 Dr Brennan wrote saying:

"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."

22. The postponed disciplinary hearing eventually took place on 22 September 2009. Since we are not concerned with the claim of unfair dismissal, and only with the question of whether the Respondent could reasonably have been expected to know that the Appellant was disabled, I need not give details of what transpired. In short, it was decided following the hearing that she would be dismissed for failure to work her contracted hours and failure to comply with the notification procedures for sickness absence.

THE TRIBUNAL PROCEEDINGS

23. The Appellant commenced her proceedings on 25 January 2010. The Respondent did not accept that she had at any material time been disabled within the meaning of the 1995 Act. That issue was listed for determination at a pre-hearing review before Employment Judge Balogun in September 2012. There was unfortunately some doubt as to the effect of her decision, but in a review decision dated 10 October 2013 she attempted to clarify what she had meant. Paras. 4-5 of her decision read:

"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.

24. The full hearing took place over several days in late October and early November 2013. As I have said, the Judgment was sent to the parties on 3 January 2014. The Tribunal dealt with the disability discrimination claim at paras. 150-156 of its Reasons. For present purposes I need refer only to para. 152, which reads:

"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."

25. I need not at this stage refer to the judgment of the EAT, since the focus of this appeal must inevitably be on whether there was any error of law in the reasoning of the ET.

THE APPEAL

26. The Appellant's grounds of appeal and skeleton argument are not drafted quite as a lawyer would have done, but I will deal in turn with the various points she makes, taking first those that seemed to Lewison LJ (and also to Judge Richardson, who permitted the appeal to proceed at the sift stage in the EAT) to be the most arguable.
27. I need to make an important point by way of preliminary. The issue for the ET was what the Respondent could reasonably have been expected to know. Tribunals frequently have to make assessments of reasonableness of that kind, and it is well established that the exercise is factual in character and cannot be challenged on appeal only on the basis that the appellate tribunal might have made a different judgment.
28. First, the Appellant argues that a reasonable reading of her GP's letters should have led the Respondent to conclude that she was suffering from an impairment which had a substantial and long-term effect on her ability to carry out day-to-day activities. As to that, the starting-point must be that on Judge Balogun's findings she was not in fact suffering from a disability until 20 August 2009, so that only the last of the letters, i.e. that dated 24 September, is directly relevant: a reasonable reading of the earlier letters could not have led the Respondent to "know" something which was not in fact the case. I accept nevertheless that they provide an important part of the background to what the Respondent ought to have known in September or October 2009: although they describe symptoms that might at the time have appeared short-term, the position had changed when her absences had been continuing for over a year, and it could be argued that they should have been reconsidered.
29. In assessing that argument two points need to be borne in mind. First, the letters do not give a clear or consistent picture. The first, dated 15 January 2009, appears to treat the Appellant's symptoms as principally the result of high blood pressure, though there is also reference to "stress, low energy levels and tiredness". The second, dated 20 April, is concerned with self-limiting stomach problems and wrist pain. The third, dated 15 May, reverts to the reference to high blood pressure and stress. The last letter, while it summarises her recent history, including her treatment for high blood pressure, says that "her sickness leave is related to work related stress". In addition to the letters, the sick notes refer to a wide range of further symptoms and conditions. It is hard for a layman to know what to make of all that. That leads to the second point, which is that the Respondent was not dependent on the GP letters. It sought the advice of outside occupational health consultants. Those consultants not only advised in terms that the Appellant was not disabled within the meaning of the Act (and did not modify that advice after 20 August 2009); they also suggested that she was not in fact suffering from any mental or physical impairment at all, or in any event one which had a substantial impact on her ability to carry out day-to-day activities – her problems were "managerial not medical". I will come back to the question of the extent to which the Respondent was entitled to rely on that advice; but, to the extent that it was, the advice is highly relevant to the question of what it could reasonably have been expected to conclude from the GP letters.
30. The Appellant's second point is that she had invited the Respondent to approach her GP if it wanted any further information about her condition. That is true, but it is not the whole story. When she first made the offer, in May 2009, she was not in fact disabled, so that even if it had been taken up it would not have led to the Respondent acquiring the relevant knowledge. But she repeated the offer on 20 August 2009, so perhaps the more important point is that it seems to me – as it evidently did to the ET – plainly reasonable for the Respondent to take the position that it did, i.e. that any communications with the Appellant's GP should be via their occupational health consultants, who could deal with the GP doctor-to-doctor. And regrettably, as the ET found, the Appellant refused to allow Maitland to contact her GP; although in her later letter to Dr Brennan she said that she had, that was not accepted by the ET.
31. The Appellant's third point depended on the decision of this Court, to which I have already referred, in Gallop, which was decided since the hearing in the ET. In that case the employee had been suffering depressive symptoms for several years, which had been held, as from a specified date, to amount to a disability. The issue was whether the employer should have known that he was suffering from that disability. It had engaged occupational health consultants ("OH"), who had repeatedly advised, but without any explanation or analysis, that he was not. The ET found that section 4 (3A) (b) was satisfied, essentially because the employer was entitled to rely on OH's view unless it was obviously wrong; and the EAT upheld that finding. This Court held that the ET was not entitled to reach its conclusion on that basis.  Rimer LJ, with whose judgment the other members of the Court agreed, said at para. 40 (p. 217):

"[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.

32. It seems that there was some concern following the decision in Gallop that it raised a serious question about whether employers in a case of this kind were entitled to attach weight to advice from occupational health consultants about whether an employee was suffering from a disability within the meaning of the 1995 Act.  It was explicitly for that reason that Judge Richardson, when permitting the appeal in the EAT to proceed, directed that it be heard by a tribunal that included lay members.  In my view it is plain that Rimer LJ did not intend generally to discount the value of such advice.  The basis on which the employee's appeal was allowed was that the ET had found that the employer was entitled to rely, and rely exclusively, on the opinion of the occupational health advisers in circumstances where that opinion was worthless because it was unreasoned.  That is perhaps most clear from para. 42 of Rimer LJ's judgment ("relying simply on its unquestioning adoption of OH's unreasoned opinion") but equally from paras. 40 and 43 ("he cannot simply rubber-stamp the adviser's opinion").  That is very far from saying that an employer may not attach great weight to the informed and reasoned opinion of an occupational health consultant.  That was the view of the EAT, and in particular of the lay members, in the present case.  Having expressed at para. 30 of his judgment essentially the same view as me about the ratio of Gallop, Langstaff J went on to say, at para. 31, that while an ET will "look for evidence that the employer has taken its own decision … the lay members sitting with me in this case would wish to emphasise that in general great respect must be shown to the views of an Occupational Health doctor", though such views should not be followed uncritically. 
33. Taking that approach to the present case, I do not believe that the ET fell into the same error as the tribunal in Gallop. At para. 152 of its Reasons it did not treat the fact that the Respondent had received advice from occupational health consultants as conclusive. It said in terms that Maitland's advice "chimed with their own experience and impressions, and the two letters that they had received from the GP", and it emphasised that they not only took occupational health advice but had their own meetings with the Appellant and took account of the GP letters. I should also say that it expressly approved the summaries of the relevant information which Ms Prendergast gave to Maitland on each occasion that she sought their advice; and it will be noted that when Dr Bellamy's initial report proved unsatisfactory Ms Prendergast went back to Maitland for clarification. This was clearly not a "rubber stamp" case.
34. The Appellant draws attention, as her counsel did in the EAT, to the fact that the ET at para. 153 of its Reasons expressed some misgivings about Dr Brennan's letter of 6 July 2009, both (a) because he expressed an opinion without having met the Appellant (though he had of course spoken to Dr Bellamy) and (b) because parts of his letter appeared to concentrate on "cause rather than effect". But it is clear that the ET did not regard that fact as undermining its conclusion in its previous paragraph, and I do not believe that it did so. At para. 36 of his judgment Langstaff J said:

"… [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."

I agree.

35. The Appellant's next point is that the Respondent must, or certainly should, have known that she was suffering from a disability because since the autumn of 2008 her manager had allowed her to start late because she complained of tiredness in the morning. But making a change of that kind in an employee's working hours does not necessarily imply any knowledge of an impairment sufficiently substantial to constitute a disability. And in any event the unchallenged finding of Judge Balogun is that the Appellant was not disabled at that time.
36. I stand back from all of this and revert to the point which I made earlier. It is not for this Court to decide whether it might have found that the Respondent could reasonably have been expected to know in September or October 2009 that the Appellant was suffering from a disability. The question is whether it was open to the ET, on the evidence that it heard, to find that it could not. It will be apparent from what I have said already that the Respondent was presented with a good deal of not very clear information, and getting a good understanding of it was not helped by the Appellant's rather uncooperative and confrontational stance. The EAT also endorsed a submission made by Mr Brown that not all of the Appellant's absences reflected her being truly unable to work: there was an element of unwillingness too, mixed in with her substantive complaints about pay and working conditions. As it observed, the ET had to disentangle what the Appellant could not do from what she would not do. This is not an easy exercise: employers are not doctors, or psychologists.
37. In those circumstances I have no difficulty understanding why the ET came to the conclusion that it did that the Respondent "did all they could reasonably be expected to have done to find out about the nature of the health problem that the Claimant was experiencing". This Court should be very slow, absent any explicit misdirection, to depart from the considered assessment of an experienced employment judge and two lay members, endorsed by the President of the EAT and two lay members. Even if – which I am not saying is the case – I would have reached a different conclusion from the ET I am quite sure that it was entitled to reach the decision which it did.
38. I would therefore dismiss this appeal.

Lord Justice Lindblom:

39. I agree.

Lord Justice Singh:

40. I also agree.