Hafeez Ahmed v Department for Work and Pensions

Disability under Equality Act 2010 section 6 must be assessed at the date of each alleged discriminatory act. A tribunal must not confine a preliminary disability issue to an earlier period where pleaded claims concern later acts, unless the parties have made an informed and unequivocal agreement to do so.

Where an unrepresented claimant appears to agree to an irrationally narrow period, with potentially decisive consequences for other claims, the tribunal must ensure that the claimant understands those consequences. A Burns/Barke response may clarify inadequate reasons, but cannot supply a fundamentally different decision on different dates and evidence.

Medical evidence is not essential to prove disability. However, a tribunal may find that a claimant has not established that alleged adverse effects arose from a particular impairment where the evidence is insufficient to distinguish overlapping conditions.

The Claimant brought disability-discrimination claims concerning disciplinary action, pay deductions, sickness absence, a potential dismissal or demotion referral, and his eventual dismissal. He relied on paroxysmal nocturnal haemoglobinuria and depression as disabilities. The Respondent accepted that the blood condition was a disability but denied that depression was.

At a preliminary hearing, the Employment Tribunal decided only whether the Claimant was disabled by depression between 22 and 25 September 2020. It held that he was not. The Claimant appealed on eight grounds, principally that this was the wrong period for claims alleging discriminatory acts in 2021 and 2022.

The central issue was whether the tribunal could determine the disability question by reference only to September 2020 despite the pleaded claims.

1. Appeal allowed on ground 1; remitted. The Employment Tribunal selected a fundamentally wrong period for determining whether the Claimant was disabled by depression. Under Equality Act 2010 section 6, disability must be assessed when each alleged discriminatory act occurred. Several pleaded claims concerned acts in 2021 and April 2022. The September 2020 period could not determine those claims.

2. The tribunal could not safely treat the Claimant as having agreed that September 2020 was the sole relevant period. Where that restriction contradicted the pleadings and evidence, and could defeat later claims irrespective of the preliminary outcome, the Employment Judge had to ensure that an unrepresented claimant understood the consequences and unequivocally accepted them. That limited clarification was required by logic, practical sense and the interests of justice; it was not entering the arena.

3. The Employment Judge’s later response to the EAT could not cure the error. The Burns/Barke procedure permits supplementary reasons for an omission or inadequate articulation. It does not permit a tribunal to provide a substantially different judgment on different periods and potentially different evidence.

4. Grounds 2 to 8 dismissed. Assuming September 2020 had been the correct period, the tribunal was entitled to find that the Claimant had not proved that the asserted adverse effects resulted from depression rather than PNH. Medical evidence and a clinically recognised mental illness were not prerequisites. Nonetheless, the tribunal was not obliged to accept the Claimant’s assertions on causation, particularly where the conditions had overlapping symptoms and contemporaneous evidence was limited.

5. The tribunal should have addressed separately the statutory elements of disability, including recurrence under Schedule 1 paragraph 2(2). Its failure to consider recurrence was, however, immaterial because its independent and sustainable conclusion was that depression had not been shown to cause the adverse effects during the selected period. Its reasons were sufficient, and it neither required mutually exclusive symptoms nor misapplied the burden of proof.

6. The question whether the Claimant was disabled by depression at the relevant times was remitted to a different Employment Judge. Case-management directions were left to the Employment Tribunal.

• Employment Appeal Tribunal: Allowed the appeal on the erroneous selection of the disability-assessment period, dismissed the remaining grounds, and remitted the disability issue to a different Employment Judge: [2024] EAT 84.
• Employment Tribunal: Employment Judge Kelly held, in a decision sent on 24 July 2023, that the Claimant was not disabled by depression between 22 and 25 September 2020.