Alcian Roofe-Stewart v MacIntyre Care Ltd

For the purposes of Equality Act 2010, the test that a substantial adverse effect is likely to recur sets a low threshold. “Likely” means that the effect could well happen, and substantial means more than minor or trivial. Where that test is met, the effect is deemed to continue; a further requirement that a future recurrence would itself last 12 months does not arise.

A tribunal must assess the evidence about the particular chronic condition and person. A prolonged period of quiescence, and the absence of bespoke medical evidence, do not alone answer whether adverse effects could well recur. If the tribunal has not applied that test or adequately explained its conclusion, its disability ruling is unsafe.

The claimant was dismissed in June 2021 after declining to participate in the respondent’s Covid-19 testing procedures. She brought claims for unfair dismissal and disability discrimination, relying on Mixed Connective Tissue Disease (MCTD).

At a preliminary hearing, the Employment Tribunal held that she was not disabled at the relevant time and struck out her disability-discrimination claim. It accepted that MCTD was a physical impairment and had previously had substantial adverse effects, but found that the condition had become quiescent and that such effects were not likely to recur.

The claimant appealed. The central issue was whether the tribunal had correctly applied the recurring-effects provision in Schedule 1 to the Equality Act 2010, and whether it should have treated the claim as one concerning past disability.

1. Appeal allowed. The Employment Tribunal’s decision that the claimant was not disabled, and its consequential dismissal of the disability-discrimination claim, were quashed. The case was remitted for a fresh determination of whether the recurring-effects provision applied.

2. The tribunal had not erred in rejecting a complaint based on past disability. A tribunal should not develop a distinct claim for a litigant in person. It should, however, clarify the case where the pleaded factual allegations plainly call for a particular legal analysis. Here, the claimant’s claim and impact statements advanced a case based on current MCTD, not discrimination because of a past disability.

3. The tribunal was entitled to find that the evidence did not establish a current substantial adverse effect during April to June 2021. That conclusion was not perverse. Advice to shield during the pandemic did not itself establish disability under the Equality Act 2010.

4. Its conclusion on Schedule 1 paragraph 2(2), however, was unsafe. The test was whether a substantial adverse effect could well recur. “Substantial” means more than minor or trivial, and [2009] UKHL 37 establishes that “likely” in this context means could well happen. There was no additional requirement that a future recurrence itself be likely to last 12 months: [2004] ICR 909.

5. The tribunal did not sufficiently assess what the available evidence concerning this chronic, fluctuating condition showed about the possibility of future flare-ups. It was not enough to refer to quiescence and the absence of medical evidence specifically directed to 2021, without applying the low statutory threshold and explaining the result.

6. On remission, a fresh Employment Tribunal should first consider at a case-management preliminary hearing whether specialist medical or expert evidence on recurrence should be permitted or directed.

• Employment Appeal Tribunal: Allowed the appeal, quashed the disability ruling, and remitted the Schedule 1 paragraph 2(2) issue for fresh determination.
• Employment Tribunal: At a preliminary hearing in September 2022, held that the claimant was not disabled within section 6 of the Equality Act 2010 at the relevant time and struck out the disability-discrimination claim.