Khorochilova v Euro REP Ltd

Under section 6 of the Equality Act 2010, a tribunal must determine both whether the claimant has a physical or mental impairment and whether it has a substantial, long-term adverse effect on normal day-to-day activities. A tribunal should not adopt a rigid sequential approach, but it does not err merely by addressing impairment first.

Where the evidence of substantial adverse effect is thin and lacks specific examples, a tribunal may find that the statutory requirement is not established. Such a finding is not perverse merely because another tribunal might have reached a different conclusion.

The claimant, a former employee of the respondent, alleged disability discrimination. She relied on mixed personality disorder as the relevant disability. The Watford Employment Tribunal found that the asserted impairment was not established and, in any event, that there was no substantial adverse effect on her normal day-to-day activities.

The claimant appealed. She contended that the Tribunal had wrongly considered impairment before adverse effect, had failed properly to consider evidence of adverse effect, and should have reconsidered its decision. The central issue was whether the Tribunal had erred in law or reached a perverse conclusion when finding that the claimant was not disabled under section 6 of the Equality Act 2010.

1. Appeal dismissed. Section 6 of the Equality Act 2010 requires findings on impairment and on substantial and long-term adverse effect. Although a tribunal should not use a rigid consecutive sequence, it commits no error of law by first asking whether the claimant has an impairment. The Employment Tribunal had also considered adverse effect in any event.

2. The Tribunal was entitled to find that the medical evidence did not establish the specific diagnosis of mixed personality disorder relied on. The psychiatrist instead described problematic personality traits. Such traits might in some circumstances amount to an impairment, but that possibility made it necessary to examine whether there was evidence of the requisite substantial adverse effect.

3. The Tribunal had expressly considered that question. It was entitled to conclude that the claimant's evidence did not provide specific, substantiated examples showing that any condition substantially limited her ability to carry out normal day-to-day activities. Strict routines, occasional confusion, and other behaviour which others might find unusual did not necessarily establish the statutory effect. There was little evidence of frequent confusion or difficulty adapting to changes in routine.

4. The finding was not perverse. The evidence of substantial adverse effect was thin, and the claimant had the burden of establishing it. A disability living allowance letter did not identify either the relevant impairment or a particular adverse effect, so the Tribunal could place greater weight on the medical evidence and the claimant's own evidence.

5. The reconsideration ground was parasitic on the failed substantive grounds and required no separate determination.

• Employment Appeal Tribunal: dismissed the claimant's appeal: [2020] UKEAT 0266_19_1802.

• Watford Employment Tribunal: held at a preliminary hearing that the claimant was not a disabled person within the meaning of the Equality Act 2010, and refused reconsideration.