Olaleye v Liberata UK & Ors

Where an ET1 pleads a physical condition and describes mental effects flowing from that condition, the claim may encompass evidence of those effects even though they were not separately identified as free-standing disabilities. The tribunal must construe the pleaded case fairly and in context.

Evidence of stress, anxiety and insomnia may therefore be led where it is said to result from the pleaded physical condition and its effects in the workplace. It does not permit an unpleaded case based on stress or anxiety arising from unrelated matters.

The Claimant brought disability-related claims in two ET1 forms after transferring between the Respondents. She alleged stress incontinence following a prolapse and described embarrassment, stress, anxiety, difficulty sleeping and problems working in an open-plan office.

At a pre-hearing review, the Employment Judge allowed an amendment to include insomnia but refused permission to add stress and anxiety. He later refused the Claimant's application to review that decision. The Claimant appealed to the Employment Appeal Tribunal, contending that the ET1 forms had already referred to stress and anxiety.

The central issue was whether the pleaded disability case permitted evidence of mental consequences said to arise from the underlying physical condition.

1. Appeal allowed. The ET1 forms plainly alleged that the Claimant's physical condition of stress incontinence had mental consequences, including embarrassment, anxiety and insomnia. The Employment Judge's approach had wrongly treated the reference to stress as confined to the expression “stress incontinence”.

2. The Claimant could not advance stress, anxiety or insomnia as free-standing disabilities on the pleaded case. However, she was entitled to lead evidence that those conditions or symptoms resulted from the underlying physical condition, its effect in an open-plan workplace, and colleagues' treatment of her.

3. The distinction reflected the proper construction of the ET1 forms. The word “stress” had been used in more than one sense: as part of the physical condition of stress incontinence and as a description of alleged mental consequences. Hatton v Sutherland [2002] EWCA Civ 76 illustrated that the term may be used for physical and mental conditions.

4. Whether the Claimant could prove disability as defined by the relevant legislation, and whether discrimination had occurred, remained for the Employment Tribunal. The case was remitted for such further hearing as was appropriate, whether a full hearing or a further pre-hearing review limited to disability.

• Employment Appeal Tribunal: Appeal allowed. The Claimant may rely on evidence of stress, anxiety and insomnia insofar as they are alleged consequences of the pleaded physical condition.

• Employment Tribunal, London South: Employment Judge Downs refused a review of his earlier pre-hearing review decision, which had refused permission to add stress and anxiety while permitting insomnia.