Hickford v Customs And Revenue (Unfair Dismissal)

Where the available medical evidence does not establish that an impairment is likely to recur, an Employment Tribunal may find that there is no recurring or fluctuating substantial adverse effect on normal day-to-day activities. This is especially so where the claimant declines an opportunity to obtain further medical evidence.

An appeal cannot ordinarily be advanced on a new point based on authorities not put before the Employment Tribunal.

The claimant, a Civil Service employee, was dismissed for gross misconduct after admitting misuse of his employer’s electronic communications system, including accessing inappropriate and non-work-related internet sites during working hours.

In proceedings concerning his dismissal, he contended that a mental impairment explained his conduct. At a preliminary hearing, the Employment Tribunal determined, on the limited lay and medical evidence, that he was not disabled at the material time. Although offered an adjournment to obtain further medical evidence, he declined it.

He appealed, alleging failures concerning recurrence, the medical evidence, statutory guidance and related case law. The central issue was whether the Tribunal had erred in finding that he was not disabled.

1. Appeal dismissed. The Employment Judge made no error in finding that the claimant was not disabled at the material time.

2. The available medical evidence did not expressly identify a risk that the claimant’s alleged symptoms would recur. His account of intermittent depression over almost 20 years was not supported by that evidence. The Employment Judge was therefore entitled to conclude that no condition likely to recur had been established and that there was no resulting substantial adverse effect on normal day-to-day activities.

3. The Employment Judge had properly considered the statutory guidance issued under the Equality Act 2010, including its treatment of recurring or fluctuating effects and the meaning of likelihood. The Judge also plainly considered the limited medical material before the Tribunal. The claimant had declined the offered adjournment to obtain further medical evidence.

4. The proposed reliance on related case law could not succeed. Nothing showed that the authorities had been cited below. The point was therefore new on appeal and was effectively prohibited: Kumchyk v Derby County Council [1978] ICR 1116.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the preliminary ruling.
• Employment Tribunal (London Central): at a preliminary hearing, held that the claimant was not disabled at the material time. No citation was stated.