Steven Connor v Chief Constable of South Yorkshire Police

A recurring impairment establishes a disability only where its substantial adverse effect on normal day-to-day activities, rather than merely the impairment itself, has recurred or is likely to recur. The claimant must prove the requisite substantial effects in both the earlier and current periods.

Under section 15 of the Equality Act 2010, whether conduct arose in consequence of disability is an objective factual question. A medical practitioner’s evidence that conduct appears connected to an impairment will ordinarily meet the balance of probabilities threshold if it is uncontradicted. Employment tribunals must give due regard to such evidence and need substantive reasons to reject it, even if it was not prepared as expert evidence for proceedings.

The claimant, a civilian police employee, was dismissed for accessing pornography on the respondent’s computer equipment. He admitted the conduct but relied on his health as mitigation. The respondent accepted physical disabilities and accepted depression as an impairment from his suspension on 8 February 2019.

The Employment Tribunal rejected claims including disability discrimination. It found that depression had not amounted to a disability before that date and that dismissal was justified. It also rejected the asserted causal connection between depression and the conduct.

The claimant appealed the Tribunal’s judgment sent to the parties on 23 May 2022. The permitted grounds alleged procedural unfairness through denial of re-examination, error in the assessment of recurrent depression, and error in the approach to causation under section 15 of the Equality Act 2010.

1. Appeal dismissed. There was no procedural irregularity. Both witnesses gave evidence in chief through their written statements. The Tribunal did not deny the claimant an opportunity to re-examine: the judge asked whether there was re-examination, and the claimant was able to clarify matters. Although there was no express invitation after the wife’s evidence, the claimant knew of the right and did not seek to exercise it. Fairness did not require the Tribunal to invite re-examination on every occasion.

2. The Tribunal was entitled to accept the respondent’s concession that depression was a disability from 8 February 2019. Its task was then to decide whether disability had been established at an earlier date. For a recurring disability, it was insufficient to show recurrent depression. Section 6 and Schedule 1 of the Equality Act 2010 require proof that the impairment had a substantial adverse effect on normal day-to-day activities in the earlier and current periods. The Tribunal was entitled to find that such an effect had not been proved before February 2019.

3. Although immaterial to the result, the Tribunal erred in its approach to the first causal question under section 15. The question whether the pornography use arose from disability was objective. Dr Barrett’s evidence indicated a connection between impairment and the conduct. In the absence of contrary evidence, wording that the conduct appeared connected would ordinarily satisfy the balance of probabilities. The Tribunal also gave excessive weight to the fact that the report was prepared for disciplinary purposes. Medical evidence from a qualified practitioner remains evidence informed by expertise; an Employment Tribunal may reject it, but requires substantive reasons.

4. Those errors could not affect the result. The claimant was not disabled at the relevant earlier time, and the Tribunal’s separate finding that dismissal was justified was not challenged. The appeal was therefore dismissed.

• Employment Appeal Tribunal: dismissed the claimant’s appeal in [2024] EAT 175. It identified immaterial errors in the Tribunal’s section 15 causation analysis.
• Employment Tribunal: judgment sent to the parties on 23 May 2022. It rejected the claims, finding no earlier disability arising from depression and finding dismissal justified.