D NAVARRO v EUROSTAR INTERNATIONAL LTD

In determining disability, a tribunal must take a functional approach and need not investigate the cause of an impairment. It may nevertheless consider whether an asserted symptom is a separate impairment or is linked to, and forms part of, another alleged impairment. A reference to the symptom’s cause is not an error of law where, read fairly in context, it addresses that linkage rather than the causal origin of the impairment.

An appellate court must read an Employment Tribunal’s reasons as a whole and without undue technical criticism. A perversity appeal requires an overwhelming case and does not permit the EAT to substitute its own factual assessment.

The claimant, a customer-service team member, brought claims for failure to make reasonable adjustments and unfavourable treatment arising from disability. Following a double mastectomy, she relied on breast pain, stiffness in her right arm, fatigue and depression.

At a preliminary hearing, the Employment Tribunal held that she was disabled by reason of right-breast pain and right-arm stiffness, but not by reason of depression or fatigue. It later refused reconsideration. The claimant appealed, contending that the Tribunal had wrongly treated the cause of fatigue as material and had reached a perverse factual conclusion about the timing and significance of reports of fatigue.

The central issue was whether the Tribunal’s treatment of fatigue disclosed an error in applying the statutory definition of disability.

1. Appeal dismissed. The Employment Tribunal had correctly directed itself in general terms on the functional approach to disability under section 6 of the Equality Act 2010, including the approach in Ministry of Justice v Hay [2008] ICR 1247.

2. The isolated statement that the cause of fatigue was unclear would have been problematic if read alone. Read fairly and as a whole, however, the Tribunal was not treating causal origin as a legal requirement. It was deciding whether the fatigue advanced as a potentially severable impairment was linked to, and part and parcel of, the physical impairment, or instead related to other symptoms and circumstances. That was a permissible factual and analytical exercise, particularly given the unclear pleading of the alleged impairments.

3. The Tribunal’s reconsideration reasons confirmed that its conclusion was that fatigue was not substantial or long-term at the relevant time. Grounds 1 and 2 therefore disclosed no error of law.

4. The perversity ground also failed. The EAT could not interfere merely because it might have reached a different conclusion. The Tribunal was entitled to treat the first reporting of fatigue to medical advisers as significant and to assess the contemporary material as it did. Its conclusion that the symptoms were not substantial or long-term was open to it and was not perverse.

• Employment Appeal Tribunal: dismissed the claimant’s appeal: [2022] EAT 7.
• Employment Tribunal, London Central: at a preliminary hearing on 7 July 2020, found disability by reason of right-breast pain and right-arm stiffness, but not depression or fatigue. A later reconsideration application was refused.