May v Secretary of State for Transport

A claimant must establish a physical or mental impairment which has a substantial and long-term adverse effect on normal day-to-day activities. The assessment must consider the alleged effects cumulatively, but the tribunal may reject the account and supporting evidence in the round where the evidence does not establish the asserted impairment or substantial effects.

An appeal cannot reargue factual disputes. A finding on disability will stand unless the tribunal made an error of law or reached a conclusion which no reasonable tribunal could reach. A tribunal need not mention every item of evidence, and an absence of express reference does not show that relevant evidence was ignored.

The claimant, an Inspector of Rail Accidents, alleged that cognitive impairment and memory loss made him disabled under the Equality Act 2010. He relied on medical material, medication, performance records and lay evidence. The respondent disputed both disability and its knowledge of any disability.

At a preliminary hearing, the Employment Tribunal at Reading found that the claimant had not established the asserted impairment or substantial adverse effects. It also found that the respondent neither knew nor could reasonably have known of a disability. The claimant appealed on the grounds that the Tribunal had failed to consider corroborative evidence and cumulative effects, had applied too high a threshold, and had erred on constructive knowledge.

1. Appeal dismissed. The appeal was in substance an impermissible challenge to the Employment Tribunal's factual assessment. There was evidence supporting its findings that the medical material was equivocal, that the claimant's account was not corroborated, and that the asserted cognitive impairment and memory loss had not been established.

2. The Tribunal had correctly directed itself under section 6 of the Equality Act 2010. It was entitled to evaluate the medical and lay evidence together, resolve conflicts in that evidence, and reject the claimant's account. The absence of a clear diagnosis was material, but the decisive point was the Tribunal's permissible assessment of all the evidence.

3. The proper approach is to consider alleged effects cumulatively rather than treating each episode in isolation. The Tribunal had done so. It rejected the complaints in the round, rather than separately rejecting isolated matters, and was entitled to find that evidence of absent-mindedness did not establish long-term and chronic memory loss.

4. The Tribunal was entitled to attach weight to the absence of direct evidence from the claimant's wife and treating specialist where the alleged effects were controversial. Second-hand hearsay could not carry the same weight as direct evidence.

5. The Tribunal's alternative findings on knowledge were supported by the evidence. The respondent had reasonably sought and relied on occupational-health advice, which did not corroborate the claimed impairment. In any event, because disability was not established, the respondent could not have actual or constructive knowledge of it.

6. The Employment Appeal Tribunal reaffirmed that it must respect factual findings, should not conduct an unrealistically detailed scrutiny of tribunal reasons, and cannot infer from an omitted reference that evidence was ignored.

• Employment Appeal Tribunal: Appeal from the Reading Employment Tribunal's preliminary decision that the claimant was not disabled within the meaning of the Equality Act 2010. Appeal dismissed.
• Employment Tribunal at Reading: Following a three-day preliminary hearing, held that the claimant was not disabled and that the respondent did not know, and could not reasonably have known, of any disability.