Temi Alao v Oxleas NHS Foundation Trust

The Employment Appeal Tribunal dismissed the claimant's appeals against two preliminary findings of the Employment Tribunal. On disability, the ET had correctly applied the Equality Act 2010 test in section 6 and Schedule 1, assessing whether the claimant's generalised anxiety disorder had a substantial and long-term adverse effect on normal day-to-day activities at the material time; the ET's evaluation of the medical and other evidence, and its conclusion that the claimant was not disabled for the purposes of the Act, was a conclusion open to it. On the jurisdiction/time-limit point, the ET permissibly found that the claimant had not validly presented her unfair dismissal claim within the limitation period and that it was not reasonably practicable for her to have done so: attempts to submit by email and by signed-for post did not comply with the Presidential Practice Direction and the ET Rules, and any belief that a valid claim had been presented before the deadline was not reasonably held given the ET's notifications and the case management chronology.

Background and parties: The claimant was employed as an HR manager by the respondent NHS foundation trust. While still employed she presented an equality claim (Claim 1) alleging failure to make reasonable adjustments; after dismissal she sought to present an unfair dismissal claim (Claim 2). The Employment Tribunal (Employment Judge Khalil) heard preliminary issues on 1 July 2020 and dismissed both claims for want of jurisdiction on Claim 2 and for failure to show disability on Claim 1.

Procedural path to this court: The claimant sought permission to appeal. On-paper review found no reasonably arguable point; permission was later granted on oral hearing under rule 3(10) and the two appeals were combined and heard by the EAT.

Nature of the claims / relief sought: (i) Claim 1: disability discrimination / failure to make reasonable adjustments under the Equality Act 2010 (sections 6, 15, 20, 21). The claimant relied on generalised anxiety disorder (and referenced symptoms of OCD). (ii) Claim 2: unfair dismissal; the claimant sought a tribunal determination but the preliminary question was whether the claim had been presented in time or whether it was reasonably practicable to have done so under section 111(2) Employment Rights Act 1998.

Issues framed by the court: (i) whether the claimant was a disabled person within the meaning of section 6 EqA at the material time; (ii) whether the ET had jurisdiction to hear the unfair dismissal claim because the claim had been presented in time or, if not, whether it was reasonably practicable for it to have been presented in time.

Court's reasoning and conclusions: On disability the EAT held that the ET was bound to decide the issue as at the material period identified by the claimant (acts up to presentation of Claim 1). The ET had correctly confined the pleaded impairment to generalised anxiety disorder as particularised and considered whether the adverse effects were substantial and long-term or likely to recur, applying Schedule 1 and relevant authorities. The ET could permissibly conclude that the evidence did not establish the necessary long-term or likely-to-recur substantial adverse effect; subsidiary points (access to work grants, OCD as symptom) were matters of evidential weight and did not render the ET's decision perverse. On Claim 2 the EAT held the ET had permissibly found there was no corroborated online presentation on 18 June 2019, that subsequent attempts by email and by posted signed-for delivery did not meet the prescribed methods in the Presidential Practice Direction or ET Rules, and that any belief that a valid claim had been presented was not reasonable in the circumstances. The EAT therefore dismissed both appeals.

Wider context: the EAT noted that treating Royal Mail signed-for service as equivalent to hand delivery would undermine the clear distinction in the Presidential Practice Direction and have wide consequences for tribunal administration.

Appeal dismissed. The EAT held that the Employment Tribunal had applied the correct legal tests under the Equality Act 2010 (section 6 and Schedule 1) and the Employment Rights Act 1998 (section 111(2)) and that its factual conclusions on disability and on the in-time presentation of the unfair dismissal claim were conclusions open to it on the evidence. The ET was entitled to treat email submissions and Royal Mail signed-for postal consignments as not satisfying the prescribed methods of presentation and to conclude any belief that the claim had been validly presented was not reasonably held.

Employment Tribunal (London South) preliminary hearing (Employment Judge Khalil) 1 July 2020; ET judgment sent 4 August 2020 dismissing Claim 1 (no disability) and Claim 2 (out of time / not reasonably practicable) ; initial on-paper consideration at the EAT by Ellenbogen J found no reasonably arguable point; permission to appeal granted after oral hearing before HHJ Tayler under rule 3(10); appeal heard and dismissed by the Employment Appeal Tribunal on 19 November 2021 (reported as [2022] EAT 135).