Lawson v Virgin Atlantic Airways Ltd

Whether an impairment is long-term under paragraph 2(1)(b) of Schedule 1 to the Equality Act 2010 is an objective question. The tribunal must assess, as at the material date and without hindsight, whether the substantial adverse effects could well last at least 12 months. The employer’s actual or constructive knowledge is irrelevant to that question.

An appellate tribunal must remit where the first-instance tribunal has made no findings from which the lawful outcome necessarily follows. It must not make its own speculative factual assessment. A remission may properly be to the same tribunal where the error is confined, the material findings remain available and there is no reason to doubt that tribunal’s ability to reconsider the issue fairly.

The claimant, a pilot, was dismissed for capability on 20 May 2017 after failing simulation assessments. He brought claims for unfair dismissal and disability discrimination, relying on an adjustment disorder causing stress and anxiety.

At a preliminary hearing, the Employment Tribunal held that he was not disabled within section 6 of the Equality Act 2010 on the assessment dates or on dismissal. It found that his impairment had become substantial at some unidentified point after 20 July 2016, but decided that the long-term requirement was not met because the employer did not know, and could not reasonably have known, that it would last a year.

The claimant appealed only the conclusion concerning 20 May 2017. The central issue was whether the tribunal had applied the correct long-term-disability test.

1. Appeal allowed and issue remitted to the same Employment Tribunal. The Employment Tribunal erred by deciding the paragraph 2(1)(b) issue by reference to the respondent’s actual or constructive knowledge. That knowledge was irrelevant to whether the claimant objectively had a disability.

2. The correct inquiry was whether, viewed at 20 May 2017 and without hindsight, the impairment’s substantial adverse effects were likely to last at least 12 months. “Likely” meant that this could well happen. The tribunal had not addressed that question in form or substance.

3. The error was material. The tribunal had found only that the substantial adverse effect began at an unidentifiable point after 20 July 2016. It had not found when, even approximately, the effect began. The Appeal Tribunal could therefore neither substitute a finding of disability nor treat the error as immaterial, because either course would require an impermissible factual assessment. Applying Jafri v Lincoln College [2014] EWCA Civ 449, the outcome had to be remitted.

4. The first ground failed. On the proper construction of the reasons, the Employment Tribunal had not found a substantial adverse effect before 20 July 2016. There was accordingly no finding of a cessation and recurrence capable of engaging paragraph 2(2) of Schedule 1.

5. The remission was to the same Employment Judge. The error was limited to the unaddressed long-term issue for the dismissal date; the earlier findings were unchallenged; the Judge retained the evidence and findings; and there was no allegation of bias or practical inability to reconsider the matter. Ground 3 required no decision and Ground 4 fell away.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the paragraph 2(1)(b) long-term-disability issue to the same Employment Tribunal.
• Employment Tribunal, London South: At a preliminary hearing, held that the claimant was not disabled under section 6 of the Equality Act 2010 on 9–10 April 2016, 3 May 2016, or 20 May 2017, and dismissed the disability discrimination claim.