Saad v University Hospital Southampton NHS Trust & Anor

For the purposes of Equality Act 2010, workplace activities may be normal day-to-day activities where they include communicating with colleagues, attending the workplace and concentrating. A tribunal must assess the actual effect of the impairment on those activities, read its findings fairly and as a whole, and decide whether the effect is substantial.

Adverse effects may be long-term although they fluctuate. That does not assist a claimant unless the tribunal first finds a substantial adverse effect. An appellate court will not interfere where the tribunal considered the relevant workplace effects and its finding that they were not substantial was open on the evidence.

The appellant, a specialist registrar in cardiothoracic surgery, claimed that depressive and general anxiety disorder made him disabled within section 6 of the Equality Act 2010. His employment tribunal held that he had a mental impairment but that its effects on normal day-to-day activities were neither substantial nor long-term.

He appealed, contending that the tribunal had failed to assess the effects on concentration, communication with colleagues and access to the workplace. He also contended that the tribunal had wrongly treated fluctuating effects as incapable of being long-term.

The central issues were whether the tribunal had addressed the relevant workplace-related activities and whether it had misdirected itself on the statutory requirement of long-term effect.

1. Appeal dismissed. Read fairly and as a whole, the tribunal had considered the alleged effects of the impairment on workplace-related activities. Those activities included communicating with colleagues, access to the workplace and concentration.

2. The tribunal was entitled to reject the appellant's account of severe restriction. It found that his evidence lacked particulars and was substantially contradicted by cross-examination and contemporaneous medical evidence. Its findings included that he could live independently, travel abroad, exercise, shop, use telephones and email, and take an active part in proceedings.

3. The tribunal also considered the evidence concerning work. By February 2012 the appellant's concentration, attention, decision-making and communication were recorded as normal. He had stated that he was fit to return to work and that his reluctance to return arose from grievance procedures and unwillingness to work with former colleagues, rather than medical inability. The tribunal was entitled to find that avoidance of colleagues and the hospital was attributable to hostility and grievance, not a substantial adverse effect of the impairment.

4. The inability to read two specialist medical textbooks did not alter that conclusion. It was advanced as evidence of impaired concentration, and the tribunal was entitled on the overall evidence to find that any effect on concentration was not substantial. It was unnecessary to decide whether an effect on specialist skills could itself hinder full and effective professional participation.

5. Section 6 requires both a substantial and a long-term adverse effect. Fluctuating effects can be long-term, but the tribunal had not held otherwise. It had found instead that the effects on concentration were not substantial. Accordingly, there was no error of law in the tribunal's conclusion that the appellant was not disabled.

• Employment Appeal Tribunal: Appeal dismissed. The tribunal's conclusion that the appellant was not disabled was upheld.
• Employment Tribunal: Employment Judge Craft's decision, sent on 28 October 2013, held that the appellant had a mental impairment but was not disabled within section 6 of the Equality Act 2010.