Establishing disability under section 6 EqA in a disability discrimination claim

At first instance, the Tribunal held that the Claimant was not disabled for the purposes of the Equality Act (EqA) at the relevant time (i.e the time of his dismissal) as there was no cogent evidence of him having a condition that was likely to return.

Despite the Claimant relying on a condition of “severe anxiety and depression” to establish his disability, his medical records made clear that he had never been diagnosed with these conditions. Instead, the notes showed two previous episodes of mental ill-health: depression in 2008 following a difficult surgery and marital issues and stress and work and anxiety in 2015.

In the alternative, the Tribunal held that the Respondent had not known, and could not reasonably have been expected to know, that the Claimant was disabled at the relevant time. Whilst the Claimant had a number of frank discussions with his employer about his absence, he did not mention his alleged disabilities, nor did he indicate at any time before dismissal that he suffered any impairment that had a long-term impact on his day-to-day activities. He had not, for instance, mentioned this on the Respondent’s equal opportunities questionnaire.

Accordingly, the claim was dismissed and the Claimant appealed.

The EAT upheld the tribunal’s decision. In particular, the EAT noted that the two incidents of depression and anxiety referred to in the medical notes had taken place prior to the Claimant’s employment with the Respondent and they had not been aware of those.

Further, the EAT confirmed that what an individual does or does not say about their impairment should be considered when assessing if they are disabled at the relevant time. This is because the individual will often be best placed to explain the effect their impairment has on their day-to-day activities. This is particularly important where there is no medical evidence in support. If an employee is silent on the matter, it will be much harder for them to establish disability and/or that their employer had knowledge of said disability at tribunal at a later date.

Generally, the EAT’s judgement provides a good summary of the law on disability and knowledge under the EqA, running through the legal test under section 6 EqA and the key cases that have established how that test should be applied. The EAT reconfirmed, for example, the key principles from Goodwin v The Patent Office (breaking down the test under section 6 – the condition; the adverse effect; the substantial adverse effect and the long-term substantial adverse effect) and emphasised that when applying the legal test, it is not a case of whether a Claimant’s condition is long-term but, rather, whether the substantial adverse impact on their ability to carry out day-to-day activities is itself long term.

More specifically, this particular case is a helpful reminder to employers as to the types of situation where they may be purported to have constructive knowledge of a disability and, more importantly, where they might not.

A full transcript can be found here: https://www.gov.uk/employment-appeal-tribunal-decisions/mr-david-seccombe-v-reed-in-partnership-ltd-ea-2019-000478-oo-previously-ukeat-slash-0213-slash-20-slash-oo