D Bangura v OCS UK & I Ltd

A claimant alleging disability discrimination must establish that an impairment had a substantial and long-term adverse effect on the normal day-to-day activities relied upon. Evidence of symptoms, medical certificates and absence from work may be relevant, but does not compel that conclusion where other evidence rationally points against a substantial effect.

An appellate tribunal must read an Employment Tribunal decision fairly and as a whole. It should not reweigh competing evidence or find perversity unless the conclusion was one no reasonable tribunal could have reached. Where disability is not established under section 6 of the Equality Act 2010, no duty to make reasonable adjustments arises.

The claimant, a train cleaner, alleged that following an accident he suffered dizziness and headaches which prevented prolonged standing and moving around. He brought a reasonable-adjustments claim after his employment ended.

The Employment Tribunal found that he had not proved a substantial and long-term adverse effect on those activities and therefore was not disabled within section 6 of the Equality Act 2010. It dismissed the reasonable-adjustments claim.

On appeal, the claimant advanced interlinked perversity grounds. He contended that the Tribunal had wrongly assessed the medical evidence, the combined effects of dizziness and headaches, the relevant time for assessing disability, and the effect of dizziness on prolonged standing.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant had not proved a disability within section 6 of the Equality Act 2010.
2. The Tribunal had correctly directed itself in law. Its conclusion was not based on an absence of symptoms or of any medical material. Rather, it found that the evidence did not establish that dizziness and/or headaches had a substantial adverse effect, meaning more than minor or trivial, on the specific day-to-day activities relied on: prolonged standing and moving around.
3. It was permissible to take account of the limited medical evidence, including that fit notes appeared to record reported symptoms without supporting examination or tests. The Tribunal was also entitled to weigh the claimant’s occupational-health and welfare-meeting accounts, inconsistencies in his evidence, his interest in roles likely to require standing and moving around, and the absence of the ordered medical report.
4. The Tribunal had considered headaches as well as dizziness. Its conclusion was that neither separately nor together had the alleged symptoms been shown to have the requisite substantial effect. It had also concluded that there was no relevant stage at which the statutory definition was satisfied.
5. Applying the appellate approach summarised in DPP Law Ltd v Greenberg, the EAT read the judgment fairly and as a whole. Evaluation of conflicting evidence was for the Tribunal. Its conclusion was open to a reasonable tribunal and did not meet the high threshold for perversity.
6. As disability was not established, the respondent was under no duty to make reasonable adjustments. The claim therefore failed.

• Employment Appeal Tribunal: Appeal dismissed in [2024] EAT 155.
• Employment Tribunal, London Central: Following a hearing on 16 to 18 February 2022, the Tribunal held that the claimant had not established disability under section 6 of the Equality Act 2010 and dismissed the reasonable-adjustments claim. Its judgment was sent on 21 March 2022.