EAT DISABILITY DISCRIMINATION – Disability
Disability discrimination – whether the Claimant was disabled for the purposes of section 6 Equality Act 2010.
The Claimant suffered from a shoulder and a hearing impairment.
The shoulder impairment had lasted more than 12 months. The issue was whether it had a substantial adverse effect on the Claimant’s ability to carry out normal day to day activities. The Employment Tribunal found the Claimant had exaggerated the effect of the impairment; giving evidence inconsistent with the contemporaneous medical evidence. It concluded substantial adverse effect had not been shown.
As for the hearing impairment: as at the date of alleged discrimination (August 2012), that had not lasted 12 months. Looking forward as at that time, the Employment Tribunal concluded that the evidence at that stage did not demonstrate that this impairment was likely to last for more than 12 months.
The Employment Tribunal also concluded that the Claimant had not established that he was disabled for section 6 Equality Act 2010 purposes as a result of the cumulative effect of the impairments.
Allowing the appeal, in part.
The focus of the Employment Tribunal’s reasoning in respect of the shoulder impairment was on its rejection of the Claimant’s exaggerated evidence of the effect of the impairment. It then concluded that substantial (not minor or trivial) adverse effect had not been shown but without demonstrating that it had applied the correct test (or had regard to the relevant Guidance) to the facts it had found to be established (i.e. based on the medical evidence to which it had had regard). It might have been open to the Employment Tribunal to conclude that the facts did not demonstrate substantial adverse effect but the conclusion could not be said to be safe on the reasons provided.
On the hearing impairment, the Employment Tribunal had been entitled to take the view that it had on the basis of the evidence before it. As at August 2012, the evidence supported its conclusion that the prognosis was good; it was unlikely the impairment would continue for more than 12 months/the rest of the Claimant’s life. Subsequent events might have demonstrated this was overly optimistic but the question was not to be answered retrospectively, with the benefit of hindsight. The Employment Tribunal’s conclusion could not be said to be perverse and disclosed no error of law.
Turning to the question of combined effect, the Employment Tribunal had to form a view as to the deduced effect of the two conditions: to add up the component parts to see whether the sum amounted to more than the individual parts. The reasoning did not demonstrate it had done this. Moreover, given the view taken on the appeal as to the shoulder impairment, the Employment Tribunal would need to demonstrate it had applied the correct test to this impairment then take that finding along with that relating to the hearing impairment (as at August 2012) and look at those conclusions to ask whether, taken as a whole, this meant that the Claimant was disabled for the purposes of section 6 (regardless whether he would have been by reason of either impairment taken separately).
Eady QC HHJ
[2014] UKEAT 0290 – 14 – 0512
Bailii
Equality Act 2010 6
England and Wales
Employment, Discrimination
Updated: 01 November 2021; Ref: scu.541963