N Moustache v Chelsea and Westminster NHS Foundation Trust
[2022] EAT 204
J Williams v Newport City Council
27 September 2023
[2023] EAT 136
Employment Appeal Tribunal
A social worker was fired after being off sick for a long time because she was anxious about going to court. The first court said she wasn't disabled, but a higher court said she was because her anxiety about court, caused by a past bad experience, meant she couldn't work, even though she could do most of her job otherwise. The higher court decided she was disabled the whole time she was off sick.
Key Facts
- •Claimant, a social worker, dismissed after 18 months' sickness absence.
- •Absence triggered by respondent's March 2017 instruction to attend court, causing severe anxiety reaction due to past trauma.
- •Respondent maintained court attendance was essential; grievance and appeal unsuccessful.
- •Tribunal found claimant had mental impairment but not disabled because court attendance wasn't a 'normal day-to-day activity'.
- •From August 2017, claimant's mental health improved, able to perform all duties except court attendance.
Legal Principles
Definition of disability under Equality Act 2010, s.6(1): physical or mental impairment with substantial and long-term adverse effect on ability to carry out normal day-to-day activities.
Equality Act 2010
Guidance on 'substantial' and 'long-term' effects; consideration of work-related activities as normal day-to-day activities.
2011 Guidance on Equality Act 2010
In assessing whether a person is disabled, it's relevant to consider whether they are limited in an activity common to different work situations (Chacón Navas, Paterson, Adams).
Case law: Chacón Navas, Paterson, Adams
'Likely' in the context of long-term effect means 'could well happen' (SCA Packaging v Boyle).
Case law: SCA Packaging v Boyle
Outcomes
EAT allowed the appeal.
Tribunal erred by failing to consider the claimant's inability to return to work due to anxiety about court attendance, despite improved mental health in other areas. The tribunal's own findings demonstrated a substantial adverse effect on her ability to carry out normal day-to-day activities.
EAT substituted a decision that the claimant was a disabled person at all material times.
The continuing anxiety caused by the potential court attendance, coupled with the respondent's refusal to remove that requirement, meant that the claimant's impairment had a substantial adverse effect on her ability to carry out normal day-to-day activities, satisfying the long-term criteria.
No direction given regarding the composition of the panel for the determination of the disability discrimination claims.
Both counsel agreed that the matter should be left to the discretion of the Regional Employment Judge.