Turner v South Central Ambulance Service NHS Trust (Disability Discrimination)

A tribunal’s reasons must be read fairly and in their full factual and procedural context. In particular, infelicitous references to a claimant being clearly disabled or to certainty do not establish that the tribunal applied a criminal standard of proof where its reasons, read as a whole, show that it decided the issue on the balance of probabilities.

Where the claimant bears the burden of proving disability at the relevant time, a recognised possibility that disability may have arisen from a particular point is insufficient. The tribunal may reject the claim if the evidence does not establish, on balance, both a qualifying impairment and the period during which it existed.

The claimant, an ambulance-service employee from 2008 until her resignation in 2011, claimed disability discrimination. She relied on post-traumatic stress disorder diagnosed in 2004 and contended that it persisted or recurred throughout her employment.

Psychiatric evidence conflicted. The Employment Judge preferred the respondent’s evidence that later episodes were separate, short-lived reactions to individual stressors rather than recurrences of an underlying impairment. Although the Judge considered that the claimant might have become disabled from about 2009, he found that disability at the relevant time had not been proved.

The claimant appealed, alleging that the Judge had confined the inquiry to disability throughout employment, applied too high a standard of proof, and failed to determine disability at the times of the alleged discriminatory acts.

1. Appeal dismissed. The Employment Judge was entitled to reject the case that the claimant had an ongoing or recurrent PTSD impairment during her employment. His findings, based on his preference for the respondent’s psychiatric evidence, excluded the alleged underlying condition during that period.

2. The Judge did not confine himself unlawfully to asking whether the claimant was disabled throughout her employment. He expressly considered whether separate episodes of stress, alone or recurrently, could satisfy the statutory definition in section 6 of the Equality Act 2010. His inability to identify a period when the claimant was disabled was material because the alleged discriminatory acts required disability at the relevant times.

3. The references to a claimant being “clearly” disabled and to an inability to answer the question “with certainty” had to be read in context. They concerned both whether there was a qualifying disability and when it arose. They did not show that the Judge applied a standard above the civil balance of probabilities. His express conclusion “on balance” showed that he had applied the correct standard.

4. A possibility that the claimant may have become disabled from about 2009 was insufficient. The claimant bore the burden of proving, on balance, the qualifying impairment and its relevant duration and timing. The Judge permissibly found the evidence insufficient to do so.

• Employment Appeal Tribunal: Dismissed the claimant’s appeal and upheld the Employment Judge’s conclusion that disability at the relevant time had not been established.
• Employment Tribunal, Reading: Found that the claimant was not disabled for the purposes of the claim.