Tribunal decision-making process in disability case upheld by EAT

The Employment Appeal Tribunal (EAT) has ruled that in circumstances where there is no evidence of a disability on the date of an alleged act of discrimination, a tribunal is entitled to consider all evidence available from around this date and infer that a disability was present at the relevant time.

This case, All Answers Ltd v Wain & Radulovska, concerned two separate claimants who each brought a number of discrimination claims against one employer. This stemmed from a change in seating arrangements in their place of work, which allegedly occurred in August 2018, and according to them placed them at a disadvantage due to their disabilities. The claimants also argued that their concerns about the change had been ignored.

The first claimant stated that he had been suffering from depression and anxiety from April 2018, but this had only come to light after the alleged act of discrimination. The second claimant put forward that she suffered from anxiety, depression, and post-traumatic stress disorder (PTSD) due to incidents that had occurred in her past.

At a preliminary hearing, the Employment Tribunal (ET) assessed if both claimants could be considered as having a disability on the dates of the alleged discriminatory incident in August 2018. Crucially, the ET had no direct evidence of the claimants’ situations on that particular date and therefore had to focus on evidence from both before and after the incident. Ultimately, the ET held that both claimants were disabled.

When considering the first claimant, the ET held that, on the evidence available to it, this employee had begun suffering from a qualifying impairment that met the definition outlined in the Equality Act 2010, and from this inferred that they were still suffering from it by August of that year. Turning to the second claimant, the ET relied heavily on a testimonial from the first claimant and ultimately concluded that this claimant also met the legal definition on the date in question.

This meant that both claimants could proceed with their claims of discrimination.

The employer appealed against this decision, taking issue with how the ET had reached its decision. Their main argument was that it was not up to the ET to seek to rely on evidence from before or after the date of alleged discrimination in order to determine the situation on this particular date.

The EAT dismissed their appeal, outlining that although the ET had not focussed on evidence available on the date of the alleged discrimination, this did not on its own show a defect in the judgement. In this situation, the ET had needed to examine the period when the acts complained of had occurred; if there was evidence of impairment shortly after the date of the alleged incident, failure to focus specifically on this date was not, in itself, a defect.

Looking at both claimants, the EAT was satisfied that the ET had fairly reached a conclusion and that the ET had also carefully considered all evidence and clearly demonstrated why they felt the testimony from the first claimant was reliable for the second.

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