Ahmed v Metroline Travel Ltd

When disability is disputed under the Disability Discrimination Act 1995, the tribunal must focus on what the claimant cannot do, or can do only with difficulty. It must not balance activities which the claimant can perform against those which cannot be performed.

However, where the claimant’s account is disputed, findings about activities actually performed may materially assist in deciding what limitations exist. The tribunal must resolve the factual dispute and reach its own legal conclusion; it must not simply adopt medical opinion. Express reference to the statutory Guidance is not invariably required where the tribunal understood its relevance and the case turned principally on credibility.

The claimant, a bus driver, appealed from a decision of the Watford Employment Tribunal at a pre-hearing review. The tribunal had concluded that his whiplash injury did not amount to a disability under the Disability Discrimination Act 1995.

The claimant challenged the tribunal’s reasoning, its treatment of the 2006 Guidance, its focus on activities he could perform, its reliance on medical evidence, and its treatment of professional bus driving as a normal day-to-day activity. The central issue was whether the tribunal had made an error of law in rejecting the claimant’s account of the extent and effects of his injury.

1. Appeal dismissed. The Employment Tribunal’s decision was sufficiently reasoned when read as a whole. The case turned on a substantial factual dispute and, principally, on the claimant’s credibility. The tribunal accepted Dr Kahtan’s account of the claimant’s abilities and rejected the claimant’s evidence about his alleged functional limitations.
2. Under the Disability Discrimination Act 1995, the tribunal must focus on what the claimant cannot do, or can do only with difficulty. It is impermissible to balance what the claimant can do against what he cannot do. However, where there is a factual dispute about the claimant’s asserted limitations, evidence of activities actually performed may throw significant light on credibility and on what the claimant could not do. The present case was factually distinguishable from Goodwin and Leonard, where the relevant factual accounts had been accepted.
3. The tribunal was entitled to rely on Dr Kahtan’s contemporaneous account as evidence of fact and credibility. It remained the tribunal’s responsibility to apply the statutory test and decide disability. The tribunal did not improperly defer to medical opinion, and the distinction drawn in Abadeh was not applicable.
4. The absence of detailed express reference to the 2006 Guidance did not disclose an error of law. The Employment Judge had considered written submissions which referred extensively to the Guidance, understood its relevance, and was deciding a case in which credibility rather than the application of detailed Guidance criteria was determinative.
5. The suggested comparative test from Paterson was unnecessary to resolve this appeal because the claimant’s asserted functional deficit had been disbelieved. The argument concerning whether professional bus driving was a normal day-to-day activity was likewise immaterial on the accepted facts. In any event, Bourne, applying Chacon Navas and Paterson, supported the conclusion that driving a bus for a full shift was not a normal day-to-day activity.

• Employment Appeal Tribunal: dismissed the appeal from the Watford Employment Tribunal’s judgment promulgated on 21 May 2010.
• Watford Employment Tribunal: at a pre-hearing review, held that the claimant was not disabled for the purposes of the Disability Discrimination Act 1995 and dismissed the disability discrimination claim.