Mefful v Merton And Lambeth Citizens Advice Bureau

An Employment Tribunal must determine whether an impairment has a substantial adverse effect by applying the statutory test to the evidence it accepts. Rejecting an exaggerated account does not, without adequate reasons, resolve whether accepted evidence of pain and restrictions establishes an effect that is more than minor or trivial.

Whether an effect is likely to be long-term must be assessed prospectively at the date of the alleged discrimination. Later deterioration and general evidence of what a condition can do do not show that it was then likely to last 12 months or for life.

Where more than one impairment is relied upon, the Tribunal must assess their cumulative effect holistically.

The Claimant appealed from the London (South) Employment Tribunal’s decision, sent on 19 August 2013, that he was not disabled within section 6 of the Equality Act 2010.

He relied on a long-standing shoulder condition and a hearing impairment arising in April 2012. The Tribunal found that his account of the shoulder condition’s effects was exaggerated and that the hearing impairment was not, as at August 2012, likely to last for 12 months. It also rejected disability based on the impairments’ cumulative effect.

The appeal concerned the Tribunal’s approach to substantial adverse effect, prospective long-term effect, and the combined effect of the two conditions.

1. Appeal allowed in part. The finding that the hearing impairment did not establish disability was upheld. The appeal succeeded concerning the shoulder impairment and the cumulative effect, and those issues were remitted to the same Employment Tribunal if practicable.

2. The Tribunal was entitled to test the Claimant’s account against the contemporaneous medical evidence and to find that he had exaggerated the effects of his shoulder condition. It had not improperly substituted medical opinion for its own assessment.

3. However, the Tribunal’s reasons did not show that it had applied the test of substantial effect to the evidence it accepted. That evidence included pain rated seven out of ten, aggravated by driving, shoulder movement and lying on the left side. Even if the Claimant’s broader account was rejected, the Tribunal had to consider how accepted pain affected normal day-to-day activities and allow for effects that varied over time. Its bare conclusion did not safely establish that the effect was no more than minor or trivial under section 212(1) of the Equality Act 2010.

4. The Tribunal was entitled to find that the hearing impairment was not likely, as at August 2012, to last for 12 months or for the rest of the Claimant’s life. The issue required a prospective assessment. The August 2012 prognosis supported the Tribunal’s conclusion; subsequent deterioration and general evidence that sensorineural hearing loss can be long-term did not make that conclusion perverse.

5. Following Ginn v Tesco Stores Ltd, the Tribunal had to add the component effects together and decide whether their combined effect was greater than their separate effects. As it had not correctly assessed the shoulder component, its brief reasoning could not resolve the cumulative question. On remittal, the Tribunal must apply the correct test to the shoulder condition and then assess both conditions holistically under section 6 of the Equality Act 2010.

• Employment Appeal Tribunal: Allowed the appeal in part and remitted the shoulder-impairment and cumulative-effect issues to the same Employment Tribunal if practicable.
• London (South) Employment Tribunal: By a judgment sent on 19 August 2013, held that the Claimant was not disabled within section 6 of the Equality Act 2010.