Temi Alao v Oxleas NHS Foundation Trust

For disability discrimination, the Employment Tribunal must determine disability by reference to the impairment and case advanced, and to the alleged discriminatory acts. A past disability cannot establish a reasonable-adjustments duty unless the claimant had a relevant continuing impairment at the time of the alleged omission.

Whether an impairment has a substantial, long-term or recurring adverse effect is a fact-sensitive assessment for the Employment Tribunal. An appeal succeeds only if its conclusion was not open to a reasonable tribunal. A claim must also be presented by a prescribed method. Royal Mail Signed For is postal service, not hand delivery. A claimant cannot rely on an unreasonable belief that an invalidly submitted claim was validly presented.

The claimant, an HR manager, brought a first Employment Tribunal claim alleging disability discrimination, including failures to make reasonable adjustments. The Tribunal found that her generalised anxiety disorder did not meet the definition of disability at the material time.

After her dismissal, she brought an unfair-dismissal claim. The Tribunal found that it had not been validly presented in time and that timely presentation had been reasonably practicable. It rejected alleged online submission, email presentation, posting to the wrong Tribunal office, and reliance on a later case-management order.

The claimant appealed both preliminary rulings to the Employment Appeal Tribunal. The central issues were whether the disability finding was perverse and whether the Tribunal lacked jurisdiction over the unfair-dismissal claim.

1. Appeal dismissed. The Employment Tribunal’s findings on disability and jurisdiction were open to it on the evidence and disclosed no error of law.

2. The relevant disability inquiry concerned the claimant’s case and the alleged discriminatory acts before her first claim was presented. Although the Tribunal may have understood the end of the material period too narrowly, it considered the December 2018 occupational-health evidence and the point could not affect the result.

3. A finding of past disability under section 6(4) of the Equality Act 2010 would not assist a reasonable-adjustments claim. Such a duty presupposes a continuing impairment causing disadvantage at the time of the alleged omission. Nor was there a section 15 claim based on treatment because of something arising from a pre-employment past disability.

4. The Tribunal was entitled to assess the impairment identified by the claimant, generalised anxiety disorder. It considered whether OCD symptoms could cumulatively alter the assessment, but neither the pleaded case nor the evidence established a relevant link. The conclusion that the evidence did not establish a substantial adverse effect that was long-term, or likely to recur, was permissible. The Tribunal’s failure expressly to mention every item of evidence, including workplace access grants, did not establish that it had failed to consider it.

5. The unfair-dismissal claim was not validly presented by an unsuccessful online attempt, by email, or by posting it to the Croydon office. Royal Mail Signed For remains a postal service and does not amount to hand delivery under the Presidential Practice Direction. The Tribunal could also find that the claimant could not reasonably believe that an administrative reference to a claim received around 25 June 2019 confirmed valid presentation, since it could only refer to the invalid email submission.

6. It was reasonably practicable to present the claim in time by the prescribed method. The Tribunal therefore had no jurisdiction to determine it.

• Employment Appeal Tribunal: Appeal dismissed: [2022] EAT 135.
• Employment Tribunal, London South: At a preliminary hearing, held that the claimant was not disabled for the relevant purpose and that the unfair-dismissal claim was out of time when timely presentation had been reasonably practicable. Judgment sent to the parties on 4 August 2020.