James Linton v The Athelstan Trust

The Employment Appeal Tribunal allowed the claimant's appeals against an Employment Tribunal’s rulings that he was not disabled within the meaning of section 6 Equality Act 2010 and that a deposit order should be made in respect of his automatic unfair dismissal complaint under section 103A Employment Rights Act 1996. The EAT held that the ET had failed properly to engage with the medical evidence (a consultant psychiatrist’s report) and had not given adequate reasons for discounting it, nor had it addressed the possible application of section 6(4) EqA (past disability). The EAT also held that the ET’s reasons for making a deposit order under rule 39 ET Rules did not explain why it doubted the claimant’s ability to establish facts essential to his protected-disclosure claim, in particular the contemporaneous performance-review evidence which the claimant had contested.

This appeal concerned two principal issues: (1) whether the claimant was disabled within the meaning of section 6 Equality Act 2010, where the impairment (alleged post-traumatic stress disorder) originated some 25 years earlier and had been largely symptom-free for many years but was said to be capable of recurrence when triggered; and (2) whether the Employment Tribunal lawfully and adequately gave reasons for a deposit order under rule 39 of the Employment Tribunal Rules in relation to the claimant's automatic unfair dismissal claim under section 103A Employment Rights Act 1996.

The claimant was employed as an ICT technician from 7 September 2020 until dismissal effective 26 November 2020. He said his refusal to wear a face mask was consequent upon PTSD arising from a historic scuba-diving accident. The ET found the claimant had experienced trauma 25 years earlier and symptoms for about two years thereafter but had been symptom-free for some 23 years. The claimant relied on post-dismissal expert evidence (a consultant psychiatrist's report) that linked the prior trauma to a recurrence of symptoms triggered by mask-wearing. The ET gave that report little weight, struck out the disability discrimination claims as having no reasonable prospect of success, and made a £500 deposit order for the automatic unfair dismissal claim on the basis it had little reasonable prospect of success.

The EAT considered the statutory test for disability (section 6 and schedule 1 EqA), the authorities on assessing long-term effects and recurrence, and the law on deposit orders (rule 39 ET Rules and EAT authorities). It held that the ET had not properly engaged with the issues: the reasons given for discounting the psychiatrist's report did not address whether the underlying impairment could give rise to recurring substantial adverse effects, and the ET failed to consider past disability under section 6(4) when that argument was before it. As to the deposit order, the ET failed to explain why it doubted the claimant would be able to establish facts essential to his protected-disclosure claim, including its assessment of contested contemporaneous performance-review evidence. The EAT allowed the appeals and invited submissions from parties on disposal, including possible remittance to an Employment Tribunal.

Appeal allowed. The Employment Appeal Tribunal found that the Employment Tribunal erred in law and in reasoning by failing to engage properly with the consultant psychiatrist’s report and by failing to address the question of past disability under section 6(4) Equality Act 2010. The EAT also held that the ET’s reasons for making a deposit order under rule 39 were inadequate because they did not explain the basis for doubting the claimant’s ability to establish facts essential to his protected-disclosure unfair dismissal claim, notably the contested contemporaneous performance-review evidence.

The claimant appealed the ET decisions of 25 January 2022 (sent 3 February 2022) which struck out the disability discrimination claim and made a deposit order in respect of the automatic unfair dismissal complaint; the claimant's application for permission initially disclosed no reasonably arguable question of law but was permitted to proceed after a Rule 3(10) hearing before His Honour Judge Beard. The ET refused reconsideration on 14 March 2022. The appeal to the Employment Appeal Tribunal succeeded and judgment was handed down on 19 February 2024 ([2024] EAT 14).