Alexander v Great Ormond Street Hospital for Children NHS Trust

Permission to appeal in a disability discrimination claim should be refused where the employment tribunal has applied a rigorous and rational approach to the evidence and no arguable error of law is shown. Establishing a mental or physical impairment is insufficient: the claimant must also prove a substantial and long-term adverse effect on normal day-to-day activities. Where treatment or corrective measures are relied on, the statutory concept of deduced effects may require clear medical evidence about their impact. Appellate courts do not rehear factual disputes or admit new expert evidence merely to improve an evidential case that could have been made below.

The applicant, a scientist employed by the respondent NHS Trust, brought claims of constructive dismissal and disability discrimination under the Disability Discrimination Act 1995. An employment tribunal made a preliminary decision that she was disabled because of hearing loss from 13 February 2002, but rejected an earlier date and did not find the necessary adverse effects of her depression established.

The Employment Appeal Tribunal dismissed her appeal. She sought permission to appeal, alleging errors concerning evidence, cumulative impairments, a hearing aid fitted in November 2001, and the interpretation of earlier audiological evidence.

1. Application refused. The proposed appeal had no real prospect of success and there was no other compelling reason to grant permission. Neither tribunal had arguably erred in law.
2. Under section 1(1) of the Disability Discrimination Act 1995, proof of a physical or mental impairment does not itself establish disability. The claimant must also prove a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. Schedule 1, paragraph 4(1) identifies relevant activities, including hearing, and paragraph 6(1) provides for deduced effects where treatment or correction prevents the impairment from producing its likely substantial adverse effect.
3. Where multiple impairments or factors might cumulatively cross the statutory threshold, the employment tribunal must consider their cumulative effect. Here, however, the tribunal had expressly considered that issue, and its finding that the depressive disorder’s required adverse effects were unproved left little scope for cumulative disability.
4. The tribunal was entitled to find that the evidence did not establish a substantial adverse effect from hearing loss before 13 February 2002. Its failure expressly to mention the November 2001 hearing-aid fitting was not a legal error, because the later clarification showed that the matter had been considered and the tribunal’s conclusion rested on the evidence as a whole.
5. The new consultant’s letter was not admissible as a basis for permission. Expert evidence about the 2000 audiogram could have been obtained for the original hearing, so it was too late to affect the appeal.
6. The complaints substantially challenged factual findings. Perversity or lack of evidential support is extremely difficult to establish, and the absence of the employment tribunal chairman’s notes made any detailed reassessment of the evidence impossible. The tribunals’ investigation was rigorous and rational.

• Court of Appeal (Civil Division) [2005] EWCA Civ 1187: permission to appeal from the Employment Appeal Tribunal was refused.
• Employment Appeal Tribunal: appeal from the employment tribunal was dismissed. No citation is stated.
• Employment tribunal: preliminary decision that the applicant was disabled by hearing loss from 13 February 2002; an earlier commencement date was rejected.