Qureshi v Marks And Spencer Plc

In deciding whether an impairment has a substantial adverse effect on normal day-to-day activities, an Employment Tribunal must focus on what the claimant cannot do or can do only with difficulty. It must not treat the claimant's remaining abilities as diminishing those limitations.

A Tribunal errs if it concludes that there is no evidence of adverse effects without reading the evidence as a whole. If credibility is material and the Tribunal rejects the claimant's account as untrue, it must make that finding clearly and give adequate reasons.

The claimant brought claims of unfair dismissal and disability discrimination against her employer. At a pre-hearing review, the Employment Tribunal held that she was not disabled at the material time and dismissed the disability discrimination claims.

The parties agreed that she had depression, a mental impairment capable of lasting 12 months. The issue was whether it had a substantial and long-term adverse effect on her normal day-to-day activities between September 2009 and July 2011.

On appeal, the claimant contended that the Tribunal had wrongly treated her evidence as relating only to a later period and had failed to determine the respondent's challenge to her credibility.

1. Appeal allowed. The Employment Judge's conclusion that there was no evidence of a substantial adverse effect could not stand.

2. Under section 6 of the Equality Act 2010, the issue was whether the admitted mental impairment had a substantial and long-term adverse effect on normal day-to-day activities. “Substantial” meant more than minor or trivial: Goodwin v The Patent Office [1999] ICR 302.

3. The Tribunal had to concentrate on activities which the claimant could not do or could do only with difficulty, rather than activities she could still do. The court accepted the approach in Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19. An overall assessment remained necessary, but retained abilities did not diminish evidence of particular limitations.

4. The claimant's witness statement had been drafted largely in the present tense. Read as a whole, however, it contained a history of symptoms and treatment during the relevant period. Her son's evidence and contemporaneous medical and occupational-health material also had historical significance. The evidence was therefore not confined to a later relapse, although its weight was for a fact-finding tribunal.

5. Credibility was substantively in issue because the joint expert identified evidence of symptom exaggeration. The Employment Judge made no finding that the claimant's account was untrue. If a tribunal finds that a claimant has lied, it must say so clearly and give reasons sufficient to show why the claim failed.

6. The disability issue was remitted for determination by a different Employment Tribunal.

• Employment Appeal Tribunal: Allowed the claimant's appeal and remitted the disability issue to a different Employment Tribunal.
• Employment Tribunal, London South: At a pre-hearing review on 6 July 2012, held that the claimant was not disabled for the purposes of section 6 of the Equality Act 2010 and the Disability Discrimination Act 1995, and dismissed the disability discrimination claims.