Lee v HSBC Bank Plc

A general practitioner’s certificate that a person is unfit for work is capable of evidencing a substantial adverse effect on normal day-to-day activities for the purposes of disability discrimination. It is not conclusive. Whether the effect is substantial remains a question of fact for the Employment Tribunal, which may assess all the medical and oral evidence, including the reliability of the claimant’s account.

Fresh evidence on appeal will not be admitted where it could, with reasonable diligence, have been adduced before the Employment Tribunal.

The claimant appealed against an Employment Judge’s reconsideration decision confirming that she was not disabled within section 6 of the Equality Act 2010. The Judge had accepted that she experienced anxiety, depression and related symptoms, but found their effect on normal day-to-day activities was minor rather than substantial.

At reconsideration, the Judge admitted general-practice records that had not been available for the original preliminary hearing, reheard the claimant’s evidence, and reached the same conclusion. The appeal challenged the treatment of GP fit notes, the finding about prescribed medication, and alleged perversity. The claimant also sought to introduce further evidence on appeal.

1. Appeal dismissed. The Employment Judge was entitled to find, on the evidence as a whole, that the claimant’s impairment had an adverse but not substantial effect on her normal day-to-day activities. That factual conclusion was not perverse.

2. The EAT accepted the analysis in Rayner v Turning Point and Ors. A GP’s diagnosis and advice that a patient should refrain from work, supported by a certificate of unfitness for work, may evidence a substantial adverse effect because working forms part of normal day-to-day activities. However, such a certificate is not determinative. The statutory substantial-effect issue remains for the Employment Tribunal as fact-finder.

3. The Employment Judge had considered the claimant’s medical records and oral evidence at both hearings. He was entitled to regard her as an unreliable historian and, having done so, to find that the effects relied upon were minor. The challenge concerning the date of one document did not assist: the document was accepted to have been wrongly dated and was not relied on in reaching the medication finding.

4. The further evidence was refused under the Ladd v Marshall test. All of it could, with reasonable diligence, have been produced at the preliminary hearing or, at latest, the reconsideration hearing. The first limb of the test was therefore not met.

• Employment Appeal Tribunal: appeal against the reconsideration decision dismissed.
• Employment Tribunal: Employment Judge Ryan, by reconsideration judgment dated 9 September 2015, confirmed the earlier finding that the claimant was not disabled within section 6 of the Equality Act 2010.
• Employment Tribunal: Employment Judge Ryan, by judgment with reasons dated 23 April 2015, held at a preliminary hearing that the claimant was not disabled.