A Rehman v DHL Services Limited

An employment tribunal’s disability determination is unsafe where it materially rests on a misreading of medical evidence as supporting adverse findings about a claimant’s credibility. A reconsideration decision will not cure that error unless it demonstrates that the original reasoning and conclusions remain sound without the misconstrued evidence.

Where the credibility finding informs the assessment of several alleged impairments, the disability issue should be reheard. An error in deciding disabled status does not, however, necessarily invalidate a refusal to permit an amendment where that refusal rests on an independently reasoned finding about the claimant’s ability to advance the proposed claims in time.

The claimant, an agency worker engaged by the respondent, brought disability discrimination and victimisation claims. He relied on keratoconus, temporo-mandibular joint dysfunction and mental ill health. At a preliminary hearing, the Employment Tribunal held that none of those impairments made him disabled and refused permission to amend the claim to add further disability discrimination complaints.

The tribunal treated a psychologist’s reference to “unconscious magnification of symptoms” as supporting findings that the claimant had exaggerated his symptoms and that his account could not be believed. It later accepted on reconsideration that the report did not support that conclusion, but maintained its original outcome. The claimant appealed the disabled-status decision and, consequentially, the amendment refusal.

1. Appeal allowed in part. The Employment Tribunal’s determination that the claimant was not disabled by reference to any of the three alleged impairments was set aside. The issue was remitted for a fresh hearing before a different employment judge.

2. The tribunal had treated Dr Misra’s observation that psychological distress might produce an unconscious magnification of physical symptoms as supporting its conclusion that the claimant had exaggerated his symptoms and was generally not credible. Properly understood, the observation concerned the effect of mental ill health on the claimant’s experience of pain. It did not support an adverse conclusion about the credibility of his evidence.

3. The error was material. The tribunal expressly used the misread observation in its assessment of the temporo-mandibular condition, mental ill health and keratoconus. It also formed part of the cumulative reasoning by which the tribunal gave no weight to the claimant’s evidence unless independently supported.

4. The reconsideration decision did not safely repair the defect. Although the tribunal acknowledged that the observation did not support a finding of exaggeration or inconsistency, it did not demonstrate that the earlier appraisal of the evidence and cumulative credibility conclusion remained sound without that support.

5. The challenge to the refusal of permission to amend failed. That decision rested on a separate, reasoned finding that the claimant had been able to prepare and advance his original claims and had not shown that mental ill health prevented him from including the proposed additional complaints. The error in the disability assessment did not undermine that finding. The appeal on the amendment issue was dismissed.

1. Employment Appeal Tribunal: Allowed the appeal against the disability determination and remitted that issue for a fresh hearing; dismissed the appeal against refusal of the amendment application: [2022] EAT 90.

2. Employment Tribunal: At a preliminary hearing, held that the claimant was not disabled by reference to any pleaded impairment and refused permission to amend the claim. Reconsideration applications were refused.