Rodriguez-Noza v Abertawe Bro Morgannwg University Health Board

A diagnosis of depression does not necessarily establish disability for the purposes of the Disability Discrimination Act 1995. The claimant must prove an impairment having a substantial and long-term adverse effect on normal day-to-day activities. An Employment Appeal Tribunal may remit issues affected by an error in the employment tribunal’s reasoning. It should not, however, reopen a separate issue on which the tribunal’s reasoning is legally sound unless the identified error may have infected that issue. Where the employment tribunal made a lawful finding as to the date on which disability began, that finding should be preserved on remittal.

The claimant, a nurse, brought claims of racial discrimination, disability discrimination and constructive unfair dismissal against her former employer. The Employment Tribunal dismissed all claims. The disability claim alleged a failure to make reasonable adjustments under section 4A of the Disability Discrimination Act 1995.

The Employment Appeal Tribunal allowed the appeal on the reasonable-adjustments issue and remitted the disability claim for rehearing by a differently constituted tribunal. It held that the Employment Tribunal had made a positive finding that disability began in 2008, but the remission order permitted that issue to be reconsidered. The employer appealed against that aspect of the order. The central issue was whether the date-of-disability finding could properly be reopened.

1. The appeal was allowed. The order of the Employment Appeal Tribunal was varied so that the remitted issues excluded the date on which the claimant first became disabled. That date was to be taken as May 2008, in accordance with the Employment Tribunal’s finding.

2. An error on one issue may justify reconsideration of another issue if the latter’s reasoning, although sound when viewed in isolation, may have been infected by the error. The Employment Appeal Tribunal may then remit the whole case, or the affected part, for reconsideration.

3. That principle did not apply here. The reasonable-adjustments issue and the date-of-disability issue involved distinct reasoning. The Employment Appeal Tribunal had expressly found the Employment Tribunal’s reasoning on the date of disability to be unimpeachable, and had identified no basis on which the error concerning section 4A could have affected that finding.

4. The Employment Tribunal had considered the evidence substantively and had not merely adopted the employer’s concession. Its conclusion that disability could not be proved before May 2008 was reasonably open to it.

5. Depression or symptoms consistent with depression may constitute an impairment under section 1 of the Disability Discrimination Act 1995, but they do not necessarily amount to a statutory disability. The claimant must also establish a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. Schedule 1 explains the long-term requirement by reference to an effect likely to last more than 12 months.

6. The Court of Appeal did not decide whether section 35 of the Employment Tribunals Act 1996 deprived the Employment Appeal Tribunal of jurisdiction to make the order, because the appeal was disposed of on the ground that the order was wrong in principle.

• Employment Tribunal: dismissed the claims of racial discrimination, disability discrimination and constructive unfair dismissal. It found that the claimant became disabled in May 2008.
• Employment Appeal Tribunal: allowed the disability discrimination appeal on the reasonable-adjustments issue and remitted the disability claim for rehearing by a differently constituted tribunal. It refused the employer’s review application under sections 33 and 35 of the Employment Tribunals Act 1996.
• Court of Appeal (Civil Division): allowed the employer’s appeal and varied the remission order by excluding the date-of-disability issue.