Walker v Sita Information Networking Computing Ltd

For disability discrimination, the relevant question is whether the claimant has a physical or mental impairment with the statutory effects. The tribunal must assess the effect of the impairment rather than require medical certainty about its cause. The absence of an identified physical or organic cause may be evidentially relevant where the genuineness of asserted symptoms is disputed. It is not a legal bar where the symptoms and their effects are accepted.

Obesity does not itself establish disability. It may, however, be evidentially relevant to whether impairments exist and whether their effects are long-term. Tribunals must have regard to the statutory guidance when applying the definition in the Disability Discrimination Act 1995.

The claimant appealed from Employment Judge Hollow’s decision, for which reasons were given on 7 November 2011, that he was not disabled.

The claimant had numerous accepted and genuine symptoms affecting daily life, including fatigue, pain, mobility, breathing, bowel and cognitive difficulties. Medical evidence described a functional or behavioural component and obesity, but did not identify a pathological process explaining the full range of symptoms. The Employment Judge treated the absence of a physical, organic or mental cause as decisive.

The issue on appeal was whether that approach was lawful under the definition of disability in the Disability Discrimination Act 1995.

1. Appeal allowed. The Employment Judge erred in treating the absence of an identified physical, organic or mental cause as preventing a finding of disability. A physical or mental impairment need not have a medically identified cause. The statutory inquiry concerns the impairment and its effect on normal day-to-day activities.

2. The absence of an apparent cause can have evidential relevance. Where a claimant’s asserted symptoms are disputed, it may assist a tribunal in deciding whether the claimant genuinely has the asserted impairment. That evidential question was not present here: the claimant’s symptoms and their effects were accepted.

3. The Employment Judge wrongly relied on McNicol and Rugamer as establishing a legal bar. Those decisions pre-dated the 2005 change under which a mental impairment no longer had to be attributable to a well-recognised medical condition. The statutory guidance should have been applied, including its direction to consider effects rather than causes.

4. Obesity does not, without more, make a person disabled. It may nevertheless be relevant evidence of impairment, of effects such as restricted mobility or breathing difficulty, and of whether an impairment is likely to be long-term.

5. On the unchallenged evidence, the claimant had substantial and long-term impairments. A finding was substituted that he was disabled for the purposes of the Disability Discrimination Act 1995 at the relevant time.

• Employment Appeal Tribunal: Allowed the appeal and substituted a finding that the claimant was disabled for the purposes of the Disability Discrimination Act 1995.

• Employment Tribunal: Employment Judge Hollow held that the claimant was not disabled. Reasons were given on 7 November 2011.