N Moustache v Chelsea and Westminster NHS Foundation Trust
[2022] EAT 204
James Linton v The Athelstan Trust
19 February 2024
[2024] EAT 14
Employment Appeal Tribunal
A man claimed his employer discriminated against him because of his PTSD, triggered by having to wear a mask at work. A court initially sided with the employer, but a higher court reversed this decision, saying the first court didn't properly look at the evidence or explain why it doubted the man's case.
Key Facts
- •Claimant, an ICT technician, dismissed by respondent after approximately six weeks.
- •Claimant claimed disability discrimination under section 15 Equality Act 2010 (EqA) and automatic unfair dismissal under section 103A Employment Rights Act 1996 (ERA).
- •Claimant's alleged disability: PTSD resulting from a diving accident 25 years prior, triggered by mandatory face masks during the pandemic.
- •Employment Tribunal (ET) found claimant was not disabled and made a deposit order for the unfair dismissal claim.
- •Claimant appealed both decisions to the Employment Appeal Tribunal (EAT).
Legal Principles
Definition of disability under section 6 EqA: physical or mental impairment with a substantial and long-term adverse effect on normal day-to-day activities.
Equality Act 2010
Systematic analysis of disability claims, considering impairment and adverse effect separately but not rigidly sequentially.
J v DLA Piper UK LLP [2010] IRLR 936 EAT
'Long-term' effect includes impairments lasting 12 months, likely to last 12 months, or likely to recur.
Schedule 1, paragraph 2 EqA
In assessing likelihood of recurrence, only events at the time of alleged discrimination are relevant.
McDougall v Richmond Adult Community College [2008] ICR 431 CA; All Answers Ltd v W [2021] IRLR 612 CA
Deposit orders under rule 39 schedule 1 ET Rules: for claims with little reasonable prospect of success. ET must give reasons.
Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013
For deposit orders, ET can make a provisional assessment of credibility but must have a proper basis for doubting the likelihood of establishing essential facts.
Jansen van Rensberg v Royal London Borough of Kingston-upon-Thames UKEAT/0096/07
Outcomes
EAT allowed the appeal on disability.
ET failed to properly engage with medical evidence, misinterpreting the relevance of post-dismissal evidence and not adequately addressing whether the claimant's condition was likely to recur. The ET also failed to address the potential for a finding of past disability.
EAT allowed the appeal on the deposit order.
ET failed to adequately explain its reasoning for doubting the claimant's ability to establish the facts of his unfair dismissal claim, particularly concerning the disputed performance review.