Royal Borough Of Greenwich v Syed

For disability under Equality Act 2010, the tribunal must decide whether the substantial adverse effect of the impairment, rather than the impairment itself, is likely to last at least 12 months. Its reasons must address the relevant medical evidence sufficiently clearly, especially where the alleged disability includes depression or anxiety.

An employer does not act unreasonably merely by holding a disciplinary hearing while an employee is certified unfit for work. A reasonable investigation may in appropriate circumstances proceed in the employee’s absence. The tribunal must assess the circumstances and must not proceed on an assumed rule requiring indefinite postponement.

The employer appealed the London (South) Employment Tribunal’s liability decision, which had upheld claims of unfair dismissal, failure to make reasonable adjustments and discrimination arising from disability. It also appealed the consequential remedy decision.

The claimant had diabetes and later suffered stress-related anxiety and depression during disciplinary proceedings. The Employment Tribunal found him disabled, held that the employer should have postponed a disciplinary hearing until he could attend, and found the dismissal unfair. The appeal concerned the adequacy and legal correctness of those findings, together with the scope of remission.

1. Appeal allowed. The liability and remedy decisions were set aside and the claims were remitted to a freshly constituted Employment Tribunal.
2. The Employment Tribunal’s primary finding of disability was unlawful. Its conclusion that diabetes and mental-health symptoms were inextricably linked did not adequately address the GP’s description of the conditions or explain why they were related impairments whose cumulative effect met the statutory definition. The Appeal Tribunal did not decide that disability was necessarily absent, but held that the reasons were insufficiently clear and properly reasoned.
3. The alternative finding was also erroneous. Under section 6 and paragraph 2 of Schedule 1 to the Equality Act 2010, the question is whether the impairment’s substantial adverse effect is likely to last at least 12 months. The Employment Tribunal instead asked whether the mental-health impairment itself was likely to last that period. In a mental-health case, medical evidence may be highly significant, including on duration, deduced effect and recurrence.
4. Although not necessary to decide the other discrimination grounds, the Appeal Tribunal noted that the reasonable-adjustments decision contained no consideration of the required comparative exercise. Its reasoning on the employer’s actual or constructive knowledge for sections 15 and 20 was also unclear.
5. The unfair-dismissal finding could not stand. The Employment Tribunal incorrectly treated the employer as having adopted a position that a disciplinary hearing could not proceed while the claimant remained medically certified unfit. It had in fact found that no further postponements would be granted. There is no rule that a reasonable employer must postpone disciplinary proceedings indefinitely whenever an employee supplies continuing medical certificates. Whether proceeding in the employee’s absence is reasonable depends on the circumstances.
6. The claimant’s cross-appeal succeeded to the extent that his direct disability-discrimination claim was also remitted. The fresh Tribunal was directed to determine the specified remaining issues and, if liability were established, remedy. Costs of £250 were ordered against the claimant.

• Employment Appeal Tribunal: allowed the employer’s appeal, set aside the Employment Tribunal’s liability and remedy decisions, and remitted the specified claims to a fresh tribunal.
• London (South) Employment Tribunal: in reasons sent on 30 October 2013, found unfair dismissal, failure to make reasonable adjustments and discrimination arising from disability. Its remedy decision was sent on 22 April 2014.