Purohit v Hospira UK Ltd

An Employment Tribunal must address whether unchallenged sickness absence caused by an impairment demonstrates a substantial adverse effect on normal day-to-day activities, including work. When considering that effect, it must also consider the position without the beneficial effects of medication where Equality Act 2010, Schedule 1, paragraph 5 applies. Expert medical evidence is not invariably required for that counterfactual exercise.

However, a claimant must independently establish that the adverse effect is long-term. An error concerning substantial effect cannot alter the result where the Tribunal's conclusion on the long-term requirement is unimpeachable. Separate physical and mental impairments should not be aggregated without a demonstrated basis for doing so.

The claimant appealed against the unanimous dismissal by the Employment Tribunal of claims arising from her dismissal by her former employer. Her disability discrimination claims relied on work-related stress, knee pain and pain from varicose veins.

The Tribunal accepted that she had mental and physical impairments, but found that she had not proved a substantial or long-term adverse effect on normal day-to-day activities. Permission was confined to four amended grounds concerning disability. The appeal raised whether the Tribunal had correctly assessed substantial effect, the effect of medication, the asserted physical condition, and the alleged cumulative effect of the impairments.

1. Appeal dismissed. Grounds 1 and 2 were made out, but neither error could affect the result.

2. The Tribunal had failed to address whether three unchallenged and increasingly lengthy certificated absences caused by the relevant impairments established, or were capable of establishing, a substantial adverse effect on the claimant's ability to undertake normal day-to-day activities, including employment. The domestic test requires an adverse effect that is more than trivial.

3. The Tribunal also had to consider the effect of the impairments without the beneficial effects of the prescribed sleeping and anti-depressant medication, as required by Schedule 1, paragraph 5 of the Equality Act 2010. In the ordinary case of medication for insomnia and depression caused by work-related stress, expert evidence was not necessary to appreciate that, without it, sleep and depression might be adversely affected.

4. Ground 3 failed. There was no medical evidence connecting the claimant's wider skeletal problems with the knee and varicose-vein impairments relied upon. Ground 4 also failed. The claimant had not shown that distinct physical and mental impairments could be combined for the statutory inquiry; there was no demonstrated interrelationship or chronological overlap.

5. In any event, the Tribunal's findings that neither asserted effect was long-term were not challenged successfully. The claimant therefore did not satisfy the definition of a disabled person in section 6(1). Further, any success was academic: the Tribunal had found that the harassment claim would fail even if disability were established, the requested stool had been provided, and there had been no opportunity to implement the proposed phased-return adjustment before suspension and dismissal.

• Employment Appeal Tribunal: dismissed the claimant's appeal, notwithstanding that grounds 1 and 2 disclosed errors of law.
• Employment Tribunal, Reading: unanimously dismissed the claimant's claims in a judgment and reasons sent to the parties on 29 November 2012.