L Brown v General Vending Services Ltd

Where an alleged disability is managed by changing work activities, a tribunal must make clear findings about the affected normal day-to-day activity and whether the claimant used a coping strategy or instead avoided that activity. Under paragraphs B7 and B9 of the relevant guidance, avoidance does not itself justify finding that the adverse effect is not substantial.

A tribunal must also assess medical evidence rigorously where its view of the evidence materially affects findings on the claimant’s credibility and the statutory disability test.

The claimant was dismissed after shoulder surgery and brought a disability-discrimination complaint. Its viability depended on whether she was a disabled person when dismissed.

The Employment Tribunal found that her shoulder impairment had ceased to have a substantial and long-term adverse effect on normal day-to-day activities. It dismissed the complaint and later refused reconsideration.

On appeal, the claimant challenged, among other matters, the tribunal’s treatment of her consultant’s post-dismissal letter and its application of paragraphs B7 and B9 of the 2011 guidance. The central issue was whether the tribunal had lawfully determined her disability status at the relevant time.

1. Appeal allowed. The Employment Tribunal’s finding that the claimant was not disabled at the relevant time was unsafe and was quashed.

2. The tribunal’s appraisal of the consultant surgeon’s July letter was a significant part of its assessment of the claimant’s credibility and the medical evidence. Its reasoning was insufficiently rigorous or clear. In particular, the letter could naturally be read as recording both stiffness and limited internal rotation, and the tribunal lacked an adequate basis for inferring that the consultant’s opinion did not reflect his actual clinical view.

3. The tribunal also erred in applying paragraphs B7 and B9 of the Guidance on matters to be taken into account in determining questions relevant to the definition of disability (2011). It did not make clear findings on what the claimant actually did in response to pain when using a computer and mouse. If she switched to tasks which did not use the computer at all, the tribunal had to consider whether this was avoidance behaviour under paragraph B9, rather than a coping strategy under paragraph B7.

4. The tribunal had not erred merely by considering both work-related computer use and activities outside work. It had not treated computer and mouse use at work as incapable of being a normal day-to-day activity. The other perversity challenges did not add materially to the successful grounds.

5. The EAT declined to substitute a finding of disability. A tribunal must make further findings about the claimant’s work tasks, computer and mouse use, whether the activity was a normal day-to-day activity, and whether any substantial adverse effect was long-term. The issue was remitted for determination afresh by a differently constituted tribunal.

• Employment Appeal Tribunal: Allowed the claimant’s appeal, quashed the Employment Tribunal’s disability finding, and remitted the issue for a fresh determination by a different tribunal.
• Employment Tribunal: Held that the claimant was not disabled at the time of dismissal and dismissed the disability-discrimination complaint. A reconsideration application was unsuccessful.