Mutombo-Mpania v Angard Staffing Solutions Ltd

To establish disability under Equality Act 2010, a claimant must prove that an impairment has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. Evidence must identify the particular activities affected and explain the causal effect of the impairment. Symptoms and a general assertion that regular night work is unsuitable do not suffice.

Night-shift work can be a normal day-to-day activity. That proposition does not relieve a claimant of proving what activities were more difficult because of the impairment. Whether an employer had constructive knowledge is a fact-sensitive evaluative question. The tribunal must weigh all information available to the employer, including information pointing both towards and against disability.

The claimant, a flexible resourcing employee supplied to Royal Mail, had essential hypertension. He had stated in recruitment and health forms that he did not have a disability. After accepting night-shift work, he told the respondent that his health condition did not allow regular night shifts. Following four absences, his services at the mail centre were ended.

At a preliminary hearing, the Employment Tribunal held that he had not proved disability within the Equality Act 2010. It also held that the respondent neither knew nor could reasonably have been expected to know of any disability. The claimant appealed, contending that night work was a normal day-to-day activity and that the respondent had constructive knowledge.

1. Appeal dismissed. The Tribunal was entitled to find that the claimant had not proved that he was a disabled person within section 6 of the Equality Act 2010.
2. Although essential hypertension was an impairment and was long term, the claimant bore the burden of proving a substantial adverse effect on normal day-to-day activities. He gave no evidence identifying activities, whether at work or otherwise, which his condition prevented or made more difficult. A list of symptoms, without that connection, did not establish the statutory test.
3. Night-shift work is capable of being a normal day-to-day activity: Chief Constable of Dumfries and Galloway Constabulary v Adams [2009] ICR 1034. But the claimant in that case had identified ordinary physical activities affected during night work. Here there was no evidence of any activity within night-shift work that hypertension made more difficult. The Tribunal could also take account of the claimant's ability to work late shifts and some night shifts. The principle that attention should be directed to what a claimant cannot do, or can do only with difficulty, did not remove the need for evidence of those activities: Leonard v South Derbyshire Chamber of Commerce [2001] IRLR19.
4. In any event, the constructive-knowledge ground would have failed. The question whether an employer could reasonably have been expected to discover disability is largely evaluative. The Tribunal permissibly balanced the references to a health condition and absences, which might have prompted further enquiries, against the claimant's negative answers on the application and health forms and his acceptance and performance of night work. A health condition is not necessarily a statutory disability. The available information did not require an inference of constructive knowledge.
5. The disability-discrimination appeal was dismissed. The claimant's remaining claims were remitted to a freshly constituted Employment Tribunal.

• Employment Appeal Tribunal: Appeal dismissed. The preliminary ruling that the claimant had not established disability, and that the respondent lacked actual or constructive knowledge, was upheld. The remaining claims were remitted to a freshly constituted Employment Tribunal.
• Employment Tribunal: At a preliminary hearing, Employment Judge L Wiseman found that the claimant was not a disabled person within the Equality Act 2010 and that the respondent did not know, and could not reasonably have been expected to know, of any disability.