Did a tribunal fail to apply the correct test when assessing disability?

Summary

The Employment Appeal Tribunal [EAT] held the Tribunal did apply the correct test when assessing disability. Martin v University of Exeter UKEAT/0092/18/LA

The Employee suffered from post-traumatic stress disorder as a result of coming across a student trying to hang himself whilst on the Respondent’s premises. The Employee of the Respondent University brought claims against the Respondent in the Employment Tribunal [ET] alleging disability discrimination and failure to make reasonable adjustments.

A preliminary hearing was held in the ET to determine the date on which the Claimant's disability began and when it became long-term for the purposes of the Equality Act 2010. On the evidence as presented to the ET the ET had no difficulty in finding the Employee had an impairment in the form of anxiety.

Further, with respect to the impairment, in a Court of Appeal case it was held that the impairment must be ‘assessed predictively’. A Claimant cannot rely on the fact that he has been impaired for a year by the time of the ET hearing. In addition, if the impairment is not long-term, the next test is whether it is likely to be long-term. The relevant test according to another Court of Appeal case with respect to the impairment being long term is that it ‘could well happen’.

In the current EAT case reference was made to the ET judgment and the words ‘necessarily predicting’ the duration of the impairment but the judgement did not take account of the previous Court of Appeal case with respect to the long term impairment test and whether it ‘ could well happen’. The Claimant put forward the argument that with the ET not referring to the previous Court of Appeal case this demonstrated that the ET had applied the wrong test and that if the ET had followed the correct test there was no obligation to demonstrate certainty.

The current EAT case held that the test laid down in the previous Court of Appeal case had been applied correctly in the present case, even though there had been no explicit mention of the test applied to the long term impairment that it ‘could well happen’ . The EAT held in the current case that the word ‘necessarily’ was used by the ET in the broad sense of the word.

Implications for Employers

This case demonstrates the importance for Employers’ to obtain expert medical evidence in order to establish whether an employee has a disability.

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