In this case, the EAT held that an employment tribunal was right in determining at a preliminary hearing that an employee was not disabled under the Equality Act 2010 (EqA), even though it had not first identified the specific acts that were alleged to amount to disability discrimination.
Facts
JP was dismissed from her employment with Spelthorne Borough Council in January 2021 following a breakdown in the working relationship. She brought an employment tribunal claim for disability discrimination, acting as a litigant in person. The tribunal considered that it was not clear from the claim form what specific acts of discrimination JP sought to rely on. A preliminary hearing was therefore held in May 2023 to determine:
- Whether JP was disabled within the meaning of the EqA at the relevant times (i.e. whether she had a physical or mental impairment that had a substantial and long-term adverse impact on her ability to carry out day to day activities)
- What specific acts of discrimination she relied on and how her claim should be categorised (e.g. as direct discrimination, discrimination arising from disability, or harassment)
- What case management orders would be needed to prepare the case for final hearing
At the preliminary hearing, the tribunal found that the relevant period for determining whether JP was disabled under the EqA ran from December 2019 (which JP confirmed as the date the earliest alleged act of discrimination had taken place) to the termination of JP's employment on 17 January 2021. On the evidence before it, the tribunal concluded that, at the time of the alleged discrimination, the effect of JP's impairment was not likely to last at least 12 months or to reoccur. Since the effect of her impairment was not "long term", she did not meet the definition of disability under the EqA. The tribunal therefore dismissed JP's claim.
JP appealed to the EAT, arguing that the tribunal:
- Should not have determined the preliminary issue of whether she was disabled without first understanding the precise nature of her discrimination allegations
- Had wrongly failed to include the period during which her internal appeal against dismissal was determined as part of the relevant period for assessing whether she was disabled
EAT decision
The EAT dismissed the appeal.
It noted that whatever the precise nature of the alleged discrimination, the date at which disability should be assessed is no later than the last discriminatory act. Provided that date is clearly identified, the tribunal does not need to explore in detail the precise nature of the claims before determining whether a claimant has the protected characteristic of disability.
JP based her argument that the tribunal should have considered the period of her internal appeal on the earlier case of O'Brien v Bolton St Catherine's Academy in which the claimant alleged that her dismissal amounted to discrimination arising from disability (see our report here). In O'Brien, it was held that the employer's "composite decision", including the original decision and any appeal, had to be justified. However, Ms O'Brien was dismissed for ill-health capability, whereas JP was dismissed due to a breakdown in the employment relationship. Given these different circumstances, O'Brien was not a relevant precedent.
The EAT acknowledged that there may be some claims where it is appropriate to consider a period after dismissal when assessing whether a claimant is disabled. It also noted that JP was a litigant in person, but it did not consider that she had been "put on the spot" at the preliminary hearing. She had known in advance that the tribunal would be considering the relevant period and whether she was disabled during that period. She had put forward written submissions, including an impact statement, which the tribunal had properly taken into account. There was nothing in JP's case, as pleaded, that contained a claim of discrimination for the period after termination of her employment.
What does this mean for employers?
Unless it is obvious that an employee is disabled for the purposes of the EqA, employers will want an employee to produce evidence of their disability. The decision in this case provides helpful confirmation that the question of disability can be determined as a preliminary issue, taking account of any evidence the employee puts forward, but without the need for a detailed exploration of the nature of the employee's claims.