Kaler v Insights ESC Ltd (Disability Discrimination)

Fresh evidence may justify setting aside an Employment Tribunal’s determination where it could not reasonably have been obtained for the original hearing, would probably have had an important influence, and is apparently credible. The overriding objective may permit substance to prevail over procedural form where the ordinary fresh-evidence procedure could not be followed.

A later clinical diagnosis does not itself determine disability under Equality Act 2010. It may nevertheless be highly material to whether a claimant had a lifelong impairment at the relevant earlier time. A perversity challenge fails where the Tribunal’s conclusion was open to it on the evidence.

The claimant brought claims including disability discrimination, whistleblowing dismissal and breach of contract. At a hearing intended to determine the merits, the Employment Tribunal dealt first with disability and found that she had not established disability during the relevant period.

After that hearing, the claimant unexpectedly obtained an NHS autism assessment and a clinical psychologist diagnosed autism spectrum disorder. Her application for reconsideration was refused. She appealed, relying on the new evidence and challenging the Tribunal’s conclusion that difficulties concerning office politics and small talk did not constitute normal day-to-day activities.

The central issues were whether the fresh evidence met the Ladd v Marshall criteria and whether the Tribunal’s finding on normal day-to-day activities disclosed an error of law.

1. Appeal allowed in part. The finding that the claimant was not disabled was set aside. The appeal against the Tribunal’s treatment of office politics and small talk was dismissed.
2. The Employment Appeal Tribunal applied the fresh-evidence principles in Ladd v Marshall, reflected in paragraph 9.3 of the Employment Appeal Tribunal Practice Direction 2018. The claimant could not, with reasonable diligence, have obtained the assessment before the Tribunal hearing. She was unrepresented, had reasonably awaited the NHS process, and the assessment shortly after the hearing resulted from the unexpected appointment of a clinician to address the backlog.
3. The diagnosis was relevant and would probably have had an important influence. Although a diagnosis did not bind the Tribunal on the statutory definition of disability, it directly addressed an impairment which the Tribunal had treated as self-diagnosed and inadequately supported by contemporaneous medical evidence. The diagnosis concerned autism, described in the assessment as lifelong, and was therefore material to the earlier period in issue.
4. The report met the low threshold of apparent credibility. The respondent’s criticisms could be tested before the Tribunal, but did not justify rejecting the report at the admission stage. The procedural route in the Practice Direction had not been fully followed because the complete material was unavailable in time. In the circumstances, the overriding objective required substance to prevail over form.
5. The Tribunal’s conclusion on the claimant’s reported difficulty with office politics and small talk was open to it. Read as a whole, the reasons did not find a general deficiency in social skills. They addressed two limited aspects of interpersonal interaction against evidence of strong communication skills. No perversity or other error of law was established.
6. The disability issue was remitted to the same Tribunal for such further evidence as it considered appropriate. If the Regional Employment Judge considered that convening that panel would cause undue delay, the issue was to be heard afresh by a differently constituted Tribunal.

• Employment Appeal Tribunal: Allowed the fresh-evidence ground, set aside the disability finding and remitted the issue: [2020] UKEAT 0051_20_2509.
• Employment Tribunal, London Central: At a preliminary determination within a merits hearing, found that the claimant had not proved disability at the relevant time. It later refused reconsideration.