EAT Disability Discrimination : Claimant suffering from Poland syndrome; having been born with his entire major left pectoral chest muscle missing, along with the sternal head on the left side of his chest and two ribs, giving rise to a marked asymmetry in the appearance of his chest.
Employment Tribunal concluded that this amounted to a disability for the purposes of the Equality Act 2010 either because it was a severe disfigurement or because it was a physical impairment which had a substantial and long-term effect on the Claimant’s ability to carry out normal day-to-day activities.
Those conclusions disclosed no error of law:
Severe disfigurement
In this case it was obvious that the Claimant suffered from a disfigurement. The issue was whether or not it was severe. When determining that issue, an Employment Tribunal was not required to carry out a visual inspection itself (either of the Claimant in person or of photographic evidence). Whilst the evidence will always be case-specific, a Tribunal could have regard (for example) to medical evidence or, in appropriate cases, to the impact of the disfigurement on the Claimant; not because it was determining the question of impairment (and accepting that it was not a subjective test) but because, in some cases, it might be helpful in assessing the severity of the disfigurement.
In this case, taking all the evidence into account, the Tribunal had sufficient evidence and gave sufficient reasons for its finding that this was a severe disfigurement case.
Substantial and long-term adverse effect on ability to carry out normal day-to-day activities
Physical impairment case. Whilst the Tribunal’s reasons failed to include the word ‘ability’, the substance of the findings clearly encompassed that term; in particular, such findings as related to the ability to carry out activities involving a pulling or pushing motion, were firmly rooted in the question of the Claimant’s abilities, not the activities themselves. Further, the Tribunal was entitled to conclude that the effect was more than merely minor or trivial; that being so, it was substantial. Aderemi v London and South Eastern Railway Ltd [2013] ICR 591 EAT, applied.
Appeal dismissed.
Eady QC
[2014] UKEAT 0467 – 13 – 2904
Bailii
England and Wales
Employment, Discrimination
Updated: 17 December 2021; Ref: scu.535103