Morgan Stanley International v. Posavec

An Employment Tribunal deciding whether a claimant is disabled must give sufficient reasons to identify the impairment and the symptoms or functional effects on which it relies. A medical label is not invariably required. However, where several possible conditions and symptoms are advanced, and disability knowledge and reasonable adjustments are in issue, the Tribunal must make clear which impairment and effects establish disability.

It must also explain the basis on which any substantial and long-term adverse effect is found. A conclusion that the claimant is disabled cannot stand where the reasons leave those matters uncertain.

The claimant brought claims including disability discrimination, discrimination arising from disability, victimisation and failure to make reasonable adjustments. She alleged an ovarian tumour and fibromyalgia, but at the preliminary hearing gave unstructured evidence of a wider range of conditions and symptoms.

The Employment Judge held that she was disabled under the Equality Act 2010 and refused the employer's strike-out or deposit application. The employer appealed the disability finding, contending that the Judge had failed to identify the relevant impairment, make adequate findings on the statutory elements, and give sufficient reasons.

The central issue was whether the reasons adequately identified the condition or symptoms that established a substantial and long-term adverse effect on normal day-to-day activities.

1. Appeal allowed. The finding that the claimant was disabled could not stand because the Employment Judge did not sufficiently identify the impairment, or the symptoms and conditions relied upon to establish it.

2. The statutory question concerns impairment rather than a particular medical diagnosis. The authorities did not require a Tribunal in every case to determine a specific medical condition. Nevertheless, the claimant had advanced numerous possible conditions, including matters beyond her pleaded case. There were disputes about the accuracy of her evidence, the employer's knowledge, and any duty to make reasonable adjustments. In that context, the reasons had to identify what disabled her during the relevant period and which symptoms were attributable to the pleaded or any other condition.

3. The Judge's reference to a physical impairment and the need for household help did not make those matters clear. It also left uncertain whether the claimant had proved her pleaded case or an unpleaded case on which she could not rely without amendment.

4. There was evidence capable of supporting a finding of substantial adverse effect if the relevant impairment had been properly identified. The long-term finding was, however, inadequately reasoned. The reasons did not reveal which condition or impairment had been in mind when the Judge found that the claimant had suffered from physical impairment since 2008.

5. The appeal was not, in substance, about the burden of proof. It was about deficient findings and reasons, contrary to the requirements of Rule 30(6) of the Employment Tribunal's (Constitution And Rules Of Procedure) Regulations 2004. The disability issue was remitted for reconsideration by a fresh Employment Judge. The strike-out or deposit application could be renewed at that hearing.

• Employment Appeal Tribunal: appeal allowed. The disability issue was remitted for reconsideration by a differently constituted Tribunal.
• Employment Tribunal: Employment Judge Warren held that the claimant was disabled under the Equality Act 2010 and refused the employer's strike-out or deposit application.