Appleby v The Governing Body Of Colburn Community Primary School & Anor

A tribunal decision must be read fairly and as a whole. An infelicitous expression does not establish an error of law where the reasoning shows that the tribunal correctly focused on the statutory effects of an impairment.

Under Schedule 1 to the Equality Act 2010, the recurrence provision is engaged only where a substantial adverse effect has ceased. Fluctuating symptoms, including good and bad days, do not necessarily establish cessation. The existence of a disability at an earlier date does not itself establish that an employer actually knew, or ought reasonably to have known, of it.

The Claimant, a teaching assistant with narcolepsy, brought claims for disability discrimination, including failures to make reasonable adjustments and discrimination arising from disability. She also alleged unfair dismissal.

The Employment Tribunal at Middlesbrough dismissed all claims. It found that narcolepsy was a disability throughout the relevant period, but that a separate mental impairment became a disability only from April 2013. It also found that the Respondents lacked actual and constructive knowledge of that mental disability and that dismissal was, in any event, proportionate.

The Claimant appealed the disability-discrimination rulings. The central issue was whether the Tribunal had used the wrong approach to the onset and recurrence of the mental impairment, thereby affecting its conclusions on adjustments, knowledge and section 15 of the Equality Act 2010.

1. Appeal dismissed. The Employment Tribunal made no error of law in finding that the Claimant had not established a mental-impairment disability before April 2013.
2. The Tribunal could have expressed its reasoning more clearly. In particular, it was unnecessary to address recurrence before determining whether the effects had lasted, or were likely to last, 12 months. Its discussion of recurrence was therefore obiter. However, read as a whole, its reasoning was directed to the substantial adverse effects of the condition, rather than wrongly asking whether the condition itself would recur.
3. The reference to effects occurring “intermittently” did not compel a finding that those effects had ceased, so as to require the recurrence inquiry under Schedule 1 paragraph 2(2) of the Equality Act 2010. It was reasonably read as referring to fluctuating symptoms and the evidential difficulty of attributing them between narcolepsy, mental impairment and responses to adverse life events.
4. The Tribunal was entitled, on the evidence and without independent psychiatric evidence, to prefer the conclusion that the symptoms before April 2013 could not squarely be attributed to a qualifying mental impairment. Its treatment of the difficult distinction identified in J v DLA Piper UK LLP [2010] ICR 1052 disclosed no error.
5. The remaining grounds depended upon establishing an earlier onset of disability. In any event, an earlier finding of disability would not have altered what was apparent to the employer or the Tribunal's sustainable findings on actual and constructive knowledge. The alternative conclusion that dismissal was a proportionate means of achieving the legitimate aim of effectively running a school was also not legally flawed.

• Employment Appeal Tribunal: appeal dismissed: [2016] UKEAT 0334_15_0804.
• Employment Tribunal, Middlesbrough: dismissed claims for disability discrimination and unfair dismissal in a reserved judgment sent to the parties on 1 December 2014.