SG Baker Ltd v Haggart

For disability status, the claimant must establish, at the relevant date, both a substantial adverse effect on normal day-to-day activities and a likelihood that the effect will last at least 12 months. The burden rests on the claimant. The tribunal must assess the evidence as it relates to the date of the alleged discrimination, including the actual severity of the impairment and its prognosis. Later developments and the claimant’s condition at the hearing cannot establish disability at the earlier date. Medical opinion may inform the factual assessment, but the statutory legal question is for the tribunal.

The employer appealed against an Employment Tribunal decision that the claimant was disabled under section 1 of the Disability Discrimination Act 1995 when dismissed on 24 March 2010. The claimant had suffered concussion after a fall in November 2009, with headaches, nausea and dizziness. The tribunal relied on his continuing symptoms and medical reports, including a general practitioner’s view that he was disabled, but also found that he was likely to improve and return to work within a few months.

The appeal concerned whether the tribunal had applied the statutory test at the correct date, assessed the evidence properly, and placed the burden of proof on the correct party.

1. Appeal allowed. The claimant was not a disabled person within section 1 of the Disability Discrimination Act 1995 as at 24 March 2010.

2. The claimant bore the burden of establishing that his impairment had a substantial adverse effect on normal day-to-day activities and that the likelihood was that the effect would last for at least 12 months. The Employment Tribunal wrongly criticised the employer for failing to make further enquiries of the general practitioner and thereby misdirected itself as to the burden.

3. The tribunal was required to analyse both elements of the statutory test. The evidence raised a question about whether the claimant’s symptoms had a substantial adverse effect at the relevant date, since the medical report indicated that he could undertake some work. In any event, the prognosis was that he would be fit to return to work within a few months, so any substantial adverse effect was not likely to persist for 12 months.

4. The tribunal had no proper basis for inferring that the general practitioner understood or had applied the statutory test merely because the report described the claimant as disabled. The legal question was for the tribunal, not the doctor.

5. Following the warning in McDougal v Richmond Adult Community College, later evidence concerning the claimant’s condition at the hearing was irrelevant to whether he was disabled when the alleged discrimination occurred. The tribunal’s findings about the claimant’s condition at the hearing were therefore erroneous.

• Employment Appeal Tribunal: allowed the employer’s appeal and substituted a finding that the claimant was not disabled under section 1 of the Disability Discrimination Act 1995 at the date of dismissal.
• Employment Tribunal, Dundee: found that the claimant was a disabled person under section 1 of the Disability Discrimination Act 1995.