James Linton v The Athelstan Trust

An Employment Tribunal determining disability must reach discernible conclusions on impairment and adverse effect, including whether the effect is substantial, long-term or likely to recur. It must engage with relevant expert evidence. Evidence obtained after the alleged discrimination may be probative of the impairment and its likely recurrent effects, even though later events cannot establish what in fact occurred after the material date.

An Employment Tribunal considering a deposit order may provisionally assess disputed facts and credibility. It must, however, give reasons identifying a proper basis for doubting that the party can establish facts essential to the claim. This requirement is an important safeguard because of the consequences of a deposit order.

The claimant appealed two decisions of the Bristol Employment Tribunal. The Tribunal found that he was not disabled at the material time and struck out his claim under section 15 of the Equality Act 2010. It also made a £500 deposit order in respect of his claim of automatic unfair dismissal for protected disclosures under section 103A of the Employment Rights Act 1996.

The claimant relied on post-traumatic stress disorder arising from a scuba-diving accident about 25 years earlier. He said that a requirement to wear a face covering had triggered a recurrence after a long symptom-free period. A consultant psychiatrist's report supported that account. The claimant also disputed the respondent's alleged contemporaneous performance-review evidence, on which the Tribunal relied when making the deposit order.

The central issues were whether the Tribunal had lawfully assessed disability and whether it had given adequate reasons for provisionally rejecting the claimant's account when making the deposit order.

1. Appeals allowed. The Employment Tribunal's decision that the claimant was not disabled, its consequential strike-out of the section 15 claim, and its deposit order could not stand.

2. The statutory inquiry under section 6 of the Equality Act 2010 requires conclusions which can be identified on impairment and adverse effect, including substantiality and duration. The Tribunal accepted the historical trauma and appeared to accept two years of nightmares and claustrophobia. It did not, however, make clear findings on whether there was an impairment, whether the earlier effects were substantial and long-term, or whether they were likely to recur.

3. The Tribunal erred by giving little weight to the psychiatrist's report without an adequate reason. Its factual concern about the report had been corrected on reconsideration. The later increase in symptoms did not answer whether the claimant had an impairment capable of producing a recurring substantial adverse effect. The report was not merely evidence of events after the alleged discrimination. It was evidence capable of linking the original trauma, the asserted continuing PTSD impairment and the claimed recurrence when face coverings were required.

4. The appeal was allowed on that basis. It was unnecessary to determine the alternative past-disability argument. If that case had been advanced, however, the Tribunal had failed to address it and its reconsideration decision did not cure that failure.

5. On the deposit order, rule 39 permitted the Tribunal to form a provisional view of credibility: Jansen van Rensberg v Royal London Borough of Kingston-upon-Thames UKEAT/0096/07. It nevertheless had to explain the proper basis for doubting the claimant's ability to prove essential facts. The Tribunal relied on a performance-review document and related email, but did not engage with the claimant's challenge to the review's content and provenance. Its reasons therefore did not show a proper basis for concluding that the automatic-unfair-dismissal claim had little reasonable prospect of success.

6. The EAT invited written submissions on consequential disposal, including any remittal.

• Employment Appeal Tribunal: Allowed the claimant's appeals against the Bristol Employment Tribunal's disability decision, strike-out and deposit order.

• Employment Tribunal, Bristol: On 25 January 2022, found that the claimant was not disabled at the material time, struck out the section 15 claim, and made a £500 deposit order on the section 103A claim. Its reconsideration decision, sent on 14 March 2022, refused reconsideration.