Kay v University Of Aberdeen & Anor

Whether a claimant is disabled is a question of fact for the tribunal. Medical evidence is important but must be assessed with all the evidence bearing on the actual effect of the impairment.

In a conduct dismissal, the tribunal asks whether the employer genuinely believed the misconduct on reasonable grounds after a reasonable investigation, and whether dismissal fell within the range of reasonable responses. A procedural defect at an initial disciplinary hearing may be cured by a full and fair appeal rehearing.

The claimant, a research assistant employed on a time-sensitive university project, was dismissed for repeated failures to submit work and meet agreed deadlines. An internal appeal reheard the disciplinary case and upheld the dismissal.

The Employment Tribunal dismissed claims for unfair dismissal, disability discrimination, reasonable adjustments, victimisation and harassment. It found that the claimant had not shown that he was disabled and that dismissal for conduct was fair.

On appeal, the claimant contended that the disability finding was perverse and that the true reason for dismissal was capability rather than conduct. The central questions were whether the Employment Tribunal had erred in law in its disability assessment or its assessment of the fairness of the conduct dismissal.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that the claimant had not established disability within the statutory definitions in the Equality Act 2010 or the Disability Discrimination Act 1995.

2. Whether a person is disabled is a factual assessment for the tribunal. It is not determined exclusively by medical evidence. The tribunal was entitled to assess all the evidence, including the occupational-health evidence, the limited evidence of effects on day-to-day activities, and its concerns about the retrospective medical report. Its conclusion that the claimant had not proved the requisite impairment and effects was open to it.

3. The Employment Tribunal was entitled to find that the employer's reason for dismissal was conduct, a potentially fair reason under section 98 of the Employment Rights Act 1996. The relevant question was not whether the employer's belief that the failures were deliberate was objectively correct. It was whether that belief was genuinely held, based on reasonable grounds and a reasonable investigation, and whether dismissal was within the range of reasonable responses.

4. The tribunal had properly directed itself by reference to British Home Stores v Burchell [1980] ICR 303, the reasonable-employer standard, and the authorities concerning procedural fairness. It was entitled to find that the employer had provided support over a lengthy period, investigated the failures, and reasonably treated the conduct as sufficient to justify dismissal.

5. Any unfairness in proceeding with the first disciplinary hearing in the claimant's absence was cured by the appeal. The appeal panel heard the evidence afresh because the claimant had been unable to attend the original hearing, and no specific prejudice from the procedure was identified.

• Employment Appeal Tribunal: dismissed the claimant's appeal and upheld the Employment Tribunal's dismissal of all claims.
• Employment Tribunal: in a decision copied to the parties on 11 January 2013, dismissed the claims for unfair dismissal, disability discrimination, reasonable adjustments, victimisation and harassment.