England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Peter Clark, Mr B. Beynon and Mr D. Smith
Appeal No: UKEAT/0586/10/DM, BAILII: [2012] UKEAT 0586_10_1907

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th December 2013

Lord Justice Rimer :

Introduction

1. This appeal, by Nigel Gallop, is against paragraph 2 of the order of 19 July 2012 made by the Employment Appeal Tribunal (His Honour Judge Clark, Mr B. Beynon and Mr D. Smith, 'the EAT') dismissing his appeal against paragraph 2 of the judgment of the Cardiff Employment Tribunal (Employment Judge Beard, Mr J. Allen and Mrs M. Williams Edgar, 'the ET') dismissing his disability discrimination claim. That judgment, together with the ET's reasons for it, was sent to the parties on 14 September 2010. Although we are not concerned with it, I add that Mr Gallop's separate unfair dismissal claim before the ET succeeded. The ET awarded him compensation of £33,045.40 and the outcome of his appeal against the amount of that award was that the EAT increased it to £60,060.82.
2. The relevant discrimination legislation in force at the times material to this case was the Disability Discrimination Act 1995 ('the DDA'). We were told that the answers to the questions raised by the appeal will be relevant also to the like disability discrimination provisions in the Equality Act 2010, and so the appeal is not concerned with questions of mere historical interest. At the heart of the issues is the fact, which is common ground, that for an employer to be answerable under the DDA for allegedly discriminatory treatment of its employee on the ground of the latter's disability, the employer must know that the employee is disabled. The issues canvassed before us included: (i) whether the employer will have sufficient knowledge if he knows of the facts that mean that the employee is a 'disabled person' within the meaning of the DDA, even if he does not know that, as a matter of law, the employee is such a person; and (ii) whether, as happened here, the employer is entitled to rely on advice from medical advisers that the employee is not a 'disabled person'. The problem in this case is that the ET was later to hold, contrary to such advice, that Mr Gallop was a 'disabled person'. The essence of the decisions below was that, as the employer had been advised by medical advisers that Mr Gallop was not a 'disabled person', the employer could not be regarded as having the requisite knowledge that he was such a person. With the permission of Elias LJ, this appeal has been brought to challenge the correctness of those decisions.
3. Mr Gallop represented himself before the ET. Before the EAT, he was represented by Ms Prince, who also represented him before us, led by Ms Monaghan QC. His former employer, Newport City Council ('Newport'), the respondent, has been represented at all stages by Ms Debbie Grennan. I am grateful to both Ms Monaghan and Ms Grennan for their helpful submissions.

The Disability Discrimination Act 1995

4. Before coming to the facts, I shall set out the relevant provisions of the DDA:

'1. Meaning of "disability" and "disabled person"

(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act and Part III of the 2005 Order 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.

(2) In this Act and Part III of the 2005 Order "disabled person" means a person who has a disability. …

3A. Meaning of discrimination

(1) For the purposes of this Part, a person discriminates against a disabled person if –

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and

(b) he cannot show that the treatment in question is justified.

(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

(3) Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4) But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

(6) If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty. …

4A. Employers: duty to make adjustments

(1) Where –

(a) a provision, criterion or practice applied by or on behalf of an employee, or

(b) any physical feature of premises occupied by the employer,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

(2) In subsection (1), "the disabled person" means –

(a) in the case of a provision, criterion or practice for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an applicant for that employment;

(b) in any other case, a disabled person who is –

(i) an applicant for the employment concerned, or

(ii) an employee of the employer concerned.

(3) 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) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment, or

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).'

5. Section 1 of the DDA is supplemented by provisions in Schedule 1. Paragraph 2, 'Long-term effects', and paragraph 2, 'Normal day-to-day activities', provide, so far as material, as follows:

'2. (1) The effect of an impairment is long-term if –

(a) it 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.

(2) Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. …

4. (1) An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following:

(a) mobility;

(b) manual dexterity;

(c) physical co-ordination;

(d) continence;

(e) ability to lift, carry or otherwise move everyday objects;

(f) speech, hearing or eyesight;

(g) memory or ability to concentrate, learn or understand; or

(h) perception of the risk of physical danger.'

6. As I have said, it is agreed that the employer must know of the employee's disability before he can be answerable for alleged disability discrimination. As regards direct discrimination under section 3A(5), that is because the alleged discrimination must be 'on the ground' of the employee's disability; and as regards the failure to make reasonable adjustments, the knowledge requirement is prescribed by section 4A(3). The critical question is as to the nature of the required knowledge.

The facts

7. I take these from the ET's reasons, although I have supplemented them by a fuller reference to some of the documents.
8. Mr Gallop commenced his employment with Newport on 21 April 1997 as a horticulture training officer. Following a redundancy in July 1998, Newport re-employed him as an assistant countryside warden, initially on a monthly basis, but he was then given a two-year contract and on 4 December 2000 his post became permanent. On 21 July 2001, his role changed to that of a grounds technician in the grounds maintenance department; and on 1 February 2004 he was promoted to the post of technical officer in the department.
9. On 13 May 2004, Mr Gallop emailed Newport explaining he was suffering from stress, identifying symptoms including lack of sleep and appetite, nausea, headaches, eye strain, tearfulness, comfort eating and an inability to concentrate and cope with simple tasks. On 20 May, Newport referred him to its external Occupational Health Advisers ('OH') for an assessment for stress counselling. On 25 June, OH wrote to Newport saying Mr Gallop had some 'stress related symptoms' but that there were no signs of clinical depression. They said the stress was likely to be work-related and should be discussed with management. OH referred him for stress counselling. Over the following months, Newport made efforts to adjust his workload by shifting part of it on to others.
10. On 1 August 2005, Mr Gallop became too ill to work and was signed off sick. OH saw him on 6 September and wrote to Newport, saying he was on sick leave with a 'stress related illness'. They said his illness was directly work-related but did not consider that he had a 'depressive illness'. They said he would benefit from further counselling.
11. In October, Mr Gallop agreed a 'return to work' plan in conjunction with OH and Newport. He returned to work on 1 November, was reintegrated on a phased basis and in early 2006 commenced a six-month temporary assignment in the cemetery department. He returned to his normal role in July. I pause at this stage to mention that the ET was later to find that Mr Gallop was a 'disabled person' as from July 2006, and so the account of the remainder of the factual story needs to be read with that in mind.
12. Mr Gallop was, on 15 August, signed off sick again. On 21 August, he lodged a grievance, in which he informed Newport that his GP had diagnosed him as suffering from depression. He complained that Newport had not taken sufficient steps to ensure his health and safety at work. He said a stress risk assessment carried out in April/May 2005 had not been properly implemented, and that his stress at work had been avoidable but that no action had been taken to alleviate it. Newport denied his complaints: it said that it had removed some of his duties from him, engaged him in a training programme and had, the year before, agreed action plans for his return to work.
13. An OH letter of 11 September to Newport's Human Resources Department, signed by Dr Riley, said Mr Gallop was beginning to recover steadily but was not yet fit to return to his post, although he was fit to attend any management investigations. Dr Riley said he would review Mr Gallop's condition in a month's time prior to giving further advice with regard to his fitness for his post. Mr Gallop's doctor's certificate of 20 September, signing him off for four weeks, diagnosed his disorder as 'reactive depression'.
14. The grievance hearing took place on 21 September. Newport did not uphold Mr Gallop's complaints. A doctor's certificate of 18 October and signing Mr Gallop off for a further five weeks gave the same diagnosis of his disorder. On 19 October, Ms Rees of Newport wrote to Dr Crosbie (another OH clinician), saying that Newport:

' … would like to know –

(i) Is there any improvement in his condition since you last saw him?

(ii) Is he able to carry out day to day activities?

(iii) Is he fit to attend an investigatory Hearing and possibly a Disciplinary Hearing?

(iv) Would you consider him to be disabled under the DDA? If so, are there any reasonable adjustments which should be made to his current range of duties?

By way of background information, I can confirm that [Mr Gallop] has had time off work previously on the grounds of stress and that on the last occasion this was because a Disciplinary Investigation [was] underway at that time. As a result of this, an Action Plan was written which gave [him] a reduced workload. We were still working within this Action Plan when [he] went off again sick, recently as a result of his alleged stress.'

15. Dr Riley wrote to Ms Talbot of Newport's HR Department on 23 October. It is not apparent that he was replying to Ms Rees's letter of 19 October, which had been addressed to Dr Crosbie. Dr Riley wrote:

'I saw [Mr Gallop] for further review today. He continues to report symptoms of stress and I note that there is an ongoing disciplinary process and an ongoing grievance procedure instigated by Mr Gallop. He has been treated with anti-depressant medication and unfortunately reports that he had an unwelcome side effect and as such his medication has recently been changed. The main side effect he reported from his initial medication was a general feeling of exhaustion which has affected his ability to concentrate.

In recent weeks he has attended a Cardiac investigation to ensure that some chest pains he has recently been experiencing are not related to his heart. I am pleased to report this test was completely normal and it is not thought that he suffers from angina. He has received counselling with regard to stress last year and on further discussion of this today he has agreed to attend for further counselling which may be helpful in his general ability to cope with his current level of stress.

I understand his GP is questioning a various number of diagnoses which may be accounting for some of his symptoms including symptoms of chest discomfort. I have taken the chance to request a report from his GP with regards to what this diagnosis might be but also to help engage in his longer term prognosis. Certainly I feel it will be some time yet before he is fit to return to work. I plan to see him again for review in 4 weeks time when I hope I can offer advice in light of his GP's report and to comment on this response to his new anti-depressant medication.

While he reports symptoms of stress I did not find him to be specifically depressed today although I will request that his GP comments with regard to this issue also. He remains fit to attend further managerial and disciplinary meetings.'

16. On 22 November, Mr Gallop was signed off for another four weeks, again with a diagnosis of 'reactive depression'. On 4 December, Dr Riley provided another report to Newport, addressed to Ms Talbot. He had examined Mr Gallop and reviewed a report from his GP. He said there were grounds for optimism that Mr Gallop could return to work in January 2007, although the main obstacle in the way was his confusion as to his job description, which he said should be the subject of clarifying discussion. He continued:

'I have taken the opportunity to refer him for counselling in order to assist with any ongoing stress and I would confirm that the provisions of [the DDA] do not apply in this case in my view.

I would confirm that he has undergone investigation for angina, the conclusion of which is that he does have some mild angina but it is not thought that this is likely to cause any limitation to his day to day activities. I do not believe that any of his current medication would limit his day to day activities or his fitness for his post.

I suggest he is referred in January when I very much hope I would be in a position to recommend a return to work.'

17. Mr Gallop's appeal against the outcome of his grievance hearing was heard on 19 December. He was told on 21 December that all the decisions were upheld.
18. On 15 January 2007, OH reported that Mr Gallop had recovered well from his recent 'stress related illness' and was fit to return to work on 24 January on a phased basis. They recommended that, upon his return, discussions should take place promptly with regard to his working role.
19. Mr Gallop did not return to work on 24 January. On 13 February, he attended a meeting to discuss such a return and he did return on 19 February. He soon became ill again and was signed off sick on 11 April. He was sent back to OH, who reported on 30 April that his symptoms had 'relapsed' and that he had depression of moderate severity, the reaction to events at work. OH advised that he was fit to attend any grievance or management meetings but recommended that a union representative be present at meetings, as he found that his stress caused him difficulty in articulating his responses. OH said that he had been referred for further counselling.
20. OH saw Mr Gallop again on 11 June. They reported that he had not improved and was reporting symptoms of moderate to severe anxiety. A report was being sought from his GP as to the latter's view on the long-term prognosis. The GP wrote to Dr Riley on 4 July. He summarised Mr Gallop's medical notes to date and continued:

'It appears that his anxiety and depression has been as a result of stress experienced at his work place.

I am not sure what his job description as a Technical Officer for [Newport] entails. However, it seems pretty clear having seen him over the past few months that he will be unable to return to work as even a recent attendance to hand in a letter caused severe anxiety problems.

I am unable to comment on whether he will be permanently incapable of returning to any work in the future, but as detailed above, I doubt he will successfully return to work in his current job.'

21. Dr Riley wrote to Newport on the same day, indicating that Mr Gallop was fit to attend meetings. On 25 July, by when OH had received the GP's letter of 4 July, Dr Crosbie wrote that there had been a slight improvement in his condition but that he remained anxious and depressed, and Dr Crosbie noted that the GP had written that Mr Gallop was having treatment for anxiety and depression and that the GP doubted that 'he will successfully return to work in his current job'. He said that his consultation with Mr Gallop showed that he had symptoms of anxiety and depression. He expressed his opinion, without explanation, that 'I do not feel the gentleman is covered under [the DDA].'
22. Dr Crosbie wrote further to Newport on 14 December, saying that Mr Gallop was likely to remain unfit for the foreseeable future, that he was not a candidate for ill-health retirement and that 'he is not covered under [the DDA].'
23. Newport wrote to Mr Gallop on 11 January 2008 with regard to OH's latest report and asked him to attend a meeting to discuss it on 17 January. Mr Gallop replied on 14 January, disputing aspects of the report, and referred to his 'positive attitude about returning to work in the near future'. He disputed OH's ability, on the information they had, to opine on his fitness to return to work. On 28 January, OH wrote to Newport, saying Mr Gallop was feeling remarkably well and was keen to return to work, his GP having certified him as fit to do so on 1 February.
24. Mr Gallop returned to work on 25 February. He was promptly suspended following allegations by other members of staff of bullying; and the other staff members said they would not work with him. The allegations went back to 2005. The making of the allegations led to Mr Gallop's dismissal on 23 May. On 22 August, he commenced his tribunal proceedings for unfair dismissal and disability discrimination.

Mr Gallop's discrimination claims

25. By his ET1, Mr Gallop asserted that he was a 'disabled person' for the purposes of the DDA 'in that he suffers from depression amounting to a mental impairment that has a substantial and long term effect on his ability to carry out day-to-day activities'. He asserted direct discrimination, disability-related discrimination and a failure by Newport to make reasonable adjustments. In the event, the only claims he pursued before the ET were the direct discrimination and reasonable adjustments claims. There is no need to make further reference to the claim based on disability-related discrimination.
26. By its ET3, Newport admitted that Mr Gallop suffered from a mental impairment but not that it had the substantial and long-term adverse effect upon him as described in section 1 of the DDA. It admitted that he had been absent from work for long periods because of work-related stress: it recorded his absences from work from 1 August 2005 to 31 October 2005; from 15 August 2006 to 18 February 2007; and from 11 April 2007 to 31 January 2008. Newport asserted that, whilst OH had advised that Mr Gallop suffered from work-related stress, they had at no time diagnosed that he was suffering from a mental impairment which had the said substantial and long-term adverse effect upon him. Newport denied any failure by it of any duty to make reasonable adjustments.

The judgment of the ET at the pre-hearing review

27. Before coming to the ET's reasons for the dismissal of Mr Gallop's discrimination claims, I should note the prior judgment of the ET (Employment Judge P. Davies, Mr D. Meredith and Mr S. Hastings) following a pre-hearing review held on 14 July 2009. That judgment was that Mr Gallop was 'disabled within the meaning of the [DDA] from July 2006 until the date of termination of employment in May 2008.' The ET was not concerned at that hearing to ascertain what knowledge Newport did or did not have at any particular time of the facts constituting such disability.
28. It was in July 2006 that Mr Gallop returned from his temporary cemetery assignment to his normal duties. Newport conceded at the PHR that the impairment from which Mr Gallop suffered had substantial adverse effects on his day-to-day activities from July 2006 onwards (section 1 of the DDA), but its position was that it was only when those effects had lasted for a year, ie in July 2007, that Mr Gallop could be regarded as a 'disabled person', when it could also be seen that such effects were likely to continue (Schedule 1 to the DDA).
29. The ET's conclusion in its reasoning that Mr Gallop was a 'disabled person' was as follows:

'23. In this case we consider that what has been shown on the facts, is that [Mr Gallop] was a disabled person from July 2006 with the condition of depression. That condition was treated throughout with anti-depressant tablets, which would have masked the effect to some extent. The effect was substantially adverse on his day-to-day activities from that date. As far as the twelve-month period is concerned, we consider this comes within the definition of the first period, namely that it has lasted twelve months, because by July 2007 it had lasted twelve months, albeit that its incidents of recurrence had fluctuated during that period of time. That is the only proper conclusion to be drawn from the facts, as found by the Tribunal from the evidence of [Mr Gallop] and also careful analysis of the medical reports that have been put before the Tribunal. Of course, in the early days, at a time when it had not lasted twelve months, it might well have been difficult for the occupational health advisors to indicate that [Mr Gallop] was actually disabled, within [the DDA]. We do not know the basis upon which the medical advisors gave their opinions about this matter. We can only say that that might be a possible explanation for their conclusion.

24. It is unnecessary for us to consider the second limb about whether there was a likelihood of recurrence. Bearing in mind that it appears on the medical evidence put before us to be related to the work situation. It appears to have been triggered by actually physically being in the work situation and circumstances alleged there. A likelihood of recurrence, if the question had been properly asked, was likely to result in that "it could well happen". Had that question been posed from July 2006 onwards, even with the limited information, there would have been a positive answer. That is not a necessary finding that we need to make, because we consider that it had lasted twelve months and that [Mr Gallop] was disabled from July 2006.'

The ET's reasons for dismissing Mr Gallop's disability discrimination claims

30. The ET set out sections 3A(2) and (5), and the material provisions of section 4A of the DDA (see [4] above) and continued:

'39. The requirement therefore, is that in order for there to be Direct Discrimination, the person must necessarily be aware of the Claimants' disability, in order to discriminate [against] them on the ground of that disability. A person cannot do something on the grounds of disability, unless they are aware of the disability, either actually or constructively. In respect of the provision dealing with adjustments, that is set out more clearly in Sub-Section 3, in that the employer must actually or constructively know that the Claimant has a disability and also is likely to be affected in the way mentioned.'

31. The ET dealt with the merits of the claims as follows. In paragraph 45, it reminded itself that for the claims to succeed, Mr Gallop had to demonstrate that Newport 'had knowledge or ought to have had knowledge of [his] disability'. In paragraph 45.1, the ET noted that it had been held at the earlier pre-hearing review that he was a 'disabled person' within the meaning of section 1(2) of the DDA (and was such a person from July 2006 until his dismissal on 23 May 2008). The ET continued:

'45.2 However, [Newport] was in receipt of continuous unequivocal advice from its Medical Advisors, who were its external Occupational Health Advisors, that [Mr Gallop] was not disabled for the purposes of the [DDA].

45.3 [Mr Gallop] has argued that his GP had come to the conclusion that he was severely depressed and that so has the tribunal. In the circumstances he argues that [OH] were in some way negligent in their conclusion that he was not disabled.

45.4 The Tribunal however, does not examine whether those conclusions by [OH] were incorrect or negligent, the Tribunal has to look at what the employer's state of knowledge was.

45.5 Of course the employer is not allowed to plead ignorance on the basis that it is ignoring obvious facts, for example: an employer could not simply say I did not send him to [OH], therefore I did not know he was disabled.

45.6 However, having sent [Mr Gallop] to [OH], [Newport], unless it has good reason to consider otherwise, is entitled thereafter to rely on the advice that it is being given by its Medical Advisors. It is well known that there can be a divergence of opinion between Medical Authority and therefore, the employer is entitled to seek its own advice and act upon that advice.

45.7 [Newport] could not in those circumstances either to know or to [sic] "reasonably be expected to know that [Mr Gallop] was a disabled person. Firstly whilst [Newport] knew of the existence of [Mr Gallop's] symptoms and depression, the requirements of the [DDA] are greater, in that the requirements are: that the impairment has lasted for a period greater than a year or is likely to last that long, and; that the problem had a significant impact on the day to day activities of [Mr Gallop]. The best way in which a Respondent can obtain such information, is to send the Claimant to appropriately qualified medical individuals and ask them for their advice on the matters in question. It can not then be said that they are not entitled to rely on that advice, unless there is some reason to show that that advice is clearly negligent or clearly being made in the absence of important information.

45.8 [Newport's] particular Advisor was in communication with [Mr Gallop's] Doctor, the Advisors examined [Mr Gallop], [Newport] was aware that [Mr Gallop] was being examined in this way and was aware that its Advisors were dealing with [Mr Gallop] in this way. Therefore, [Mr Gallop] was in a position where his disability, although existing as found by the Tribunal in the earlier judgment, was not manifesting that disability to [Newport] so that they would be deemed to have knowledge. This [is] because their Medical Advisors were telling them that [Mr Gallop] was not a disabled person. The Medical Advisors gave [Newport] reasons for their conclusions as to [Mr Gallop's] condition.

45.9 Therefore, in the absence of knowledge Disability Discrimination does not take place, either under the Direct Discrimination Provisions or the Provisions relating to Reasonable Adjustments. In the case of direct discrimination this is because knowledge is required for the respondent to consciously or subconsciously act upon the grounds of disability. With regard to the duty to make adjustments this is because of the specific requirement that the duty does not arise unless there is the required real or constructive knowledge.

46. In the light of that, the Tribunal have come to the conclusion that … the Disability Discrimination Claims are not well founded and are dismissed. …'

32. Those reasons are clear. They are that, unless the employer has good reason for forming his own different view, he is entitled to rely on the opinion of his medical advisers as to whether his employee is or is not a 'disabled person'. If such advisers advise the employer of their view that the employee is not a disabled person, then even if in fact he is a disabled person, the employer does not have the knowledge requisite for the engagement of his obligations towards the employee not to discriminate against him directly 'on the ground' of his disability (section 3A(5)) or by failing to make reasonable adjustments (section 4A(3)). Newport was entitled to rely on OH's opinion that Mr Gallop was not a 'disabled person' and so did not have the requisite knowledge.

The judgment of the EAT

33. The extempore judgment of the EAT was delivered by Judge Clark, who dealt with the issue of knowledge as follows:

'24. The relevant findings of the Tribunal as to whether [Newport] had actual or constructive knowledge of [Mr Gallop's] disability are contained in paragraph 45 of the Tribunal's reasons, leading to the conclusion that it did not. In challenging that finding, Ms Prince advances a number of arguments: first, that it is enough that the employer was aware of the constituent elements in the employee's condition and the effect of the disability on him, and it is not necessary that they had knowledge that this amounted to a disability under the then DDA; secondly, the Tribunal failed to consider the knowledge imputed to them through their agents, the OH advisors; thirdly, they failed to properly consider the effect of [Newport's] concession at the earlier PHR that [Mr Gallop] was disabled within the meaning of the DDA, albeit only from July 2007 …; and finally, perversity.

25. We have considered each of these submissions and reject them. In our judgment, [Newport] was entitled to rely on the advice from OH on three or four separate occasions that despite his medical condition he was not disabled within the DDA. Interestingly, as Ms Grennan pointed out, in commenting specifically on Dr Crosby's report of 14 December 2007 in a letter to Mr Boyett of [Newport] dated 14 January 2008 [Mr Gallop] does not challenge Dr Crosby's opinion that he is not disabled. Secondly, the knowledge that is to be imputed to [Newport] through the OH service is that [Mr Gallop] is not disabled, not that he is. Thirdly, the fact that long after the employment ended on the basis of subsequent medical evidence [Newport] conceded that [Mr Gallop] was disabled for part but not all of the period contended for and found by the PHR tribunal in favour of [Mr Gallop] does not stop [Newport] from raising the issue of knowledge at the substantive hearing. Finally, as to perversity, we are not persuaded that the Tribunal's findings at paragraph 45 cross the high threshold for perversity appeals. Their conclusion that [Newport] did not have the necessary knowledge was a permissible finding.

26. It follows that the argued claims of direct disability discrimination and failure to make reasonable adjustments necessarily fail. As indicated earlier, the same fate would have befallen the disability-related discrimination claim had it been pursued.'

The appeal

34. Mr Gallop's appellant's notice is ambitious. Whereas the ET found that Newport did not know of Mr Gallop's disability at any material time, Mr Gallop asks this court to find as a fact that Newport had 'knowledge (actual or imputed) of [his] disability'. If the court does make that finding, it is then asked to remit the case to the ET for a determination as to whether or not Newport discriminated against Mr Gallop under the DDA. The claims of discrimination are based on alleged acts and omissions ranging from 2004 down to Mr Gallop's dismissal in 2008. As the ET has found that Mr Gallop was a 'disabled person' only from July 2006 onwards, the pursuit of the discrimination allegations in respect of prior periods is a non-runner; and I understood Ms Monaghan to recognise that the highest that Mr Gallop's case might reasonably be advanced on the facts is that it was only from about 23 October 2006 that Newport knew Mr Gallop was a disabled person.
35. This court is not, however, a fact-finding tribunal. The appeal has been permitted on the basis that Elias LJ was satisfied that it was properly arguable that the ET misdirected itself in its route to its conclusion that Newport had at no time any knowledge of Mr Gallop's disability, and that the EAT was in error in upholding the ET's approach. If the ET was in such error, the function of this court is to identify what the error was and how the ET should have directed itself. Having done so, this court cannot then descend into the fact-finding arena. It must be for the ET to make the appropriate findings of fact. If the appeal is in principle well-founded, the task of this court can, I consider, be to do no more than to identify the correct approach that the ET should adopt on a remitted hearing.
36. I come to the central question, namely whether the ET misdirected itself in law in arriving at its conclusion that Newport had neither actual nor constructive knowledge of Mr Gallop's disability. As to that, Ms Monaghan and Ms Grennan 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.
37. At that point, however, the agreement between counsel came to an end. Ms Monaghan's submission was that, in their terse statements to Newport on 4 December 2006 (Dr Riley), 25 July 2007 (Dr Crosbie) and 14 December 2007 (Dr Crosbie), OH had done no more than express their unreasoned opinions that Mr Gallop was not a 'disabled person' within the meaning of the DDA. That, she said, was not an opinion that Newport was entitled to adopt so as to enable it to meet Mr Gallop's discrimination claim by an assertion that it was ignorant at all times of the fact that, as the ET was later to find, Mr Gallop was a disabled person from July 2006 onwards. The question for the ET was not what OH's opinion on the matter was but whether, at the times material to the discrimination claims, Newport had actual or constructive knowledge of the facts constituting Mr Gallop's disability.
38. Ms Monaghan submitted that that was a task that the ET did not perform. It started out correctly in paragraph 45 of its judgment by saying that Mr Gallop had to show that 'the employer had knowledge or ought to have had knowledge of [his] disability'. It then, however, went astray by regarding Newport's knowledge of the disability as exclusively governed by OH's opinion as to whether Mr Gallop was a disabled person. That was wrong. The task for the ET was to inquire and making findings as to Newport's actual or constructive knowledge at the material times of the facts constituting the disability from which Mr Gallop suffered. It did not perform that task.
39. Ms Grennan submitted that so to interpret the ET's conclusions is to do them an injustice. She said the natural inference from OH's expressed opinions was that they were conveying to Newport their expert medical judgment on whether, on the facts, the DDA's section 1/Schedule 1 criteria were established in relation to Mr Gallop. The ET was entitled to take that into account in its assessment of whether Newport itself had the requisite knowledge of the facts; and its conclusion that Newport did not was a conclusion to which it was entitled to come.
40. I disagree with Ms Grennan's suggested interpretation of OH's expressed opinions as to whether Mr Gallop was or was not a disabled person. Their 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 Newport 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, Newport 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.

Conclusion

41. As I have said, I agree with counsel, and would hold, that the task for the ET was to ascertain whether, at the material times, Newport 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 Newport 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.
44. I add that this case illustrates the need for the employer, when seeking outside advice from clinicians, not simply to ask in general terms whether the employee is a disabled person within the meaning of the legislation but to pose specific practical questions directed to the particular circumstances of the putative disability. The answers to such questions will then provide real assistance to the employer in forming his judgment as to whether the criteria for disability are satisfied.
45. I would allow Mr Gallop's appeal, set aside paragraph 2 of the EAT's order and paragraph 2 of the ET's judgment, and remit the case to the ET for a re-hearing of Mr Gallop's discrimination claims on terms I would invite counsel to attempt to agree.

Sir John Mummery :

46. I agree.

Longmore LJ :

47. I agree also.