Hutchison 3G UK Ltd v Edwards

A tribunal may find a severe disfigurement without inspecting the claimant or photographs. Severity is an objective question for the tribunal on the evidence as a whole. Medical and descriptive evidence may suffice. The impact of a disfigurement on the claimant may assist in assessing its severity, although that impact is not a necessary condition and the test is not subjective.

For a physical impairment under section 6(1) of the Equality Act 2010, the tribunal must assess an adverse effect on the claimant’s ability to carry out normal day-to-day activities. An impairment of ability to perform tasks requiring pulling or pushing beyond minimal weight may be substantial where it is more than minor or trivial.

The claimant, a sales associate, had Poland syndrome from birth. He was missing his major left pectoral muscle, part of that muscle and two ribs, producing marked chest asymmetry. He brought claims including constructive unfair dismissal and disability discrimination after workplace issues concerning a new polo shirt.

At a pre-hearing review, the Newcastle-upon-Tyne Employment Tribunal held that he was disabled. It found both a severe disfigurement and, alternatively, a physical impairment with a substantial adverse effect on normal day-to-day activities. The employer appealed only the disability finding, challenging the evidential basis and reasoning on both grounds.

The central issue was whether the tribunal had lawfully found disability within section 6 of the Equality Act 2010.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant had a severe disfigurement and was therefore disabled. Its use of the phrase “substantial disfigurement” did not show that it had substituted a wrong statutory test. Read fairly and as a whole, its reasons showed that it had addressed severity.

2. Severity was an objective question, but the tribunal could take account of the practical impact of the disfigurement when evaluating its severity. That was not because it was deciding whether there was an impairment with a substantial adverse effect under section 6(1), nor because the claimant’s own view was decisive. It could nevertheless be relevant evidence of prominence and severity.

3. The tribunal was not required to inspect the claimant visually or require photographic evidence. A claimant must provide sufficiently compelling evidence, but what suffices is case-specific. Here, the claimant’s account, his GP’s description of absent chest muscle and ribs, and evidence of the lengths he took to conceal the condition provided an adequate evidential basis and adequate reasons.

4. The alternative physical-impairment finding was also lawful. Although the tribunal had not repeated the word ability in its conclusions, its finding that, without adjustments, the claimant could not undertake tasks such as opening a fridge door or operating a car handbrake concerned his ability to perform them. The tribunal had not found a separate mental impairment; psychological effects alone could not be treated as such on the wording of its decision.

5. Applying Aderemi, the relevant adverse effect was the reduced strength and pain affecting tasks requiring a pulling or pushing motion with the left upper body beyond fairly minimal weight. That affected a range of normal day-to-day activities. It was open to the tribunal to find that the effect was more than minor or trivial and therefore substantial. The perversity challenge did not meet the required high threshold.

• Employment Appeal Tribunal: dismissed the employer’s appeal and upheld the disability finding.
• Employment Tribunal, Newcastle-upon-Tyne: at a pre-hearing review on 3 June 2013, held that the claimant was disabled under section 6 of the Equality Act 2010.