F v Cleveland Police Authority

Fresh evidence will exceptionally be admitted on appeal where it could not reasonably have been obtained for the tribunal hearing, would probably have had an important influence on the result, and is apparently credible. Where admitted medical records may materially alter findings about a claimant’s credibility and a statutory disability assessment, the proper course is ordinarily to remit the disability issue to the fact-finding tribunal.

Under Disability Discrimination Act 1995, substantiality concerns the effect on normal day-to-day activities. It does not separately qualify the effect on one of the listed capacities. The long-term requirement remains compatible with the EU concept of disability.

The claimant, a civilian employee of the respondent Police Authority, brought disability discrimination, victimisation and dismissal claims after her dismissal in February 2010. At a pre-hearing review, the Employment Tribunal held that she was not disabled under section 1 of the Disability Discrimination Act 1995. Its assessment materially relied on her failure to produce medical records for 1993 to 2001 and on the resulting adverse view of her credibility.

On appeal, the claimant sought to adduce the missing records. The central issues were whether they satisfied the fresh-evidence test, whether the Tribunal’s disability findings were perverse or legally flawed, and whether the disability issue should be remitted to the same Tribunal.

1. Appeal allowed. The newly obtained medical records were admitted. The claimant had exercised reasonable diligence in seeking her full records before the pre-hearing review; their earlier non-production resulted from the surgery’s administration. The records were apparently credible and were likely materially to affect both the Tribunal’s assessment of her credibility and the question whether a recurring impairment met the long-term condition in Schedule 1.

2. The Employment Tribunal was entitled, on the evidence then before it, to reject the claimant’s account and its findings that none of the eight capacities was affected were not perverse. The separate perversity challenges therefore failed. The admission of evidence capable of changing the factual assessment nevertheless made remission necessary.

3. The correct statutory analysis asks whether there is an impairment, an effect on a listed capacity in carrying out normal day-to-day activities, a substantial adverse effect, and a long-term effect. Substantiality applies to the adverse effect on normal day-to-day activities, rather than separately to the listed capacity. For Schedule 1 paragraph 2(2), “likely” means that recurrence could well happen.

4. The proposed EU-law ground was not permitted as a new point not taken below. In any event, although the general EU concept of disability was accepted, the domestic requirement that an adverse effect be long term was not inconsistent with the Framework Directive.

5. The disability issue was remitted to the same Employment Tribunal, if practicable. The original credibility finding was based on missing evidence rather than a wholesale failure by that Tribunal; there was no bias allegation, and remittal to the existing panel was proportionate. The Tribunal was to case-manage the further hearing, with the parties’ preferred course being to determine disability with overall liability.

• Employment Appeal Tribunal: allowed the appeal after admitting fresh medical evidence and remitted the disability issue to the Employment Tribunal.
• Employment Tribunal: at a pre-hearing review promulgated on 2 March 2011, held that the claimant was not disabled within section 1 of the Disability Discrimination Act 1995 and dismissed the disability discrimination claims.