Robinson v Nottingham Healthcare NHS

An Employment Tribunal must determine disability by making clear findings on the asserted adverse effects of an impairment, whether their cumulative effect is substantial, and whether that effect is long-term. It must assess the claimant’s evidence and credibility. It cannot reject evidence merely because it lacks corroboration.

Fluctuating evidence of mental-health symptoms should not be averaged so as to conceal periods of serious effect. The tribunal must consider whether effects at their most severe were more than minor or trivial and, if intermittent, whether they were likely to recur. Under Equality Act 2010, an activity not advanced as part of the disability case need not be considered unless it was plainly in issue.

The claimant, a temporary staffing administrator employed by the respondent, brought disability-discrimination complaints based on generalised anxiety and panic disorder. She relied on asserted effects upon attending appointments, food shopping, household tasks, sleep, driving and communication.

At a preliminary hearing, the Employment Tribunal held that she was not disabled at the material times and dismissed the claims. It rejected much of her evidence as unsupported, relied on averaged CBT scores, and did not separately address the long-term element.

The claimant appealed. The central question was whether the Tribunal had lawfully assessed whether her impairment had a substantial and long-term adverse effect on normal day-to-day activities.

1. Appeal allowed. The Employment Tribunal’s correct self-direction did not save its reasoning. Its findings did not demonstrate that it had applied the statutory disability test lawfully.

2. The Tribunal erred by treating the claimant’s evidence in her impact statement as insufficient because it was unsupported by corroboration. There is no legal requirement that evidence in an Employment Tribunal be corroborated. The Tribunal had to assess the evidence, any challenge to it, and the claimant’s credibility or reliability before making findings of fact. It could not reject the evidence simply by saying that the claimant had failed to meet the standard of proof.

3. The Tribunal also erred in its treatment of fluctuating CBT scores. Averaging self-reported scores over a lengthy period provided no rational basis for finding that there had been no substantial adverse effect. It should have considered the effects when most severe, then whether they were more than minor or trivial and whether the long-term condition, including likely recurrence, was met.

4. Those errors affected the findings concerning accompaniment to appointments, food shopping, household tasks, sleep, driving and communication. In particular, passing a driving test did not rationally establish that anxiety could not later have a substantial adverse effect on driving. Evidence elicited in cross-examination could also properly support the claimant’s case on sleep.

5. The Tribunal was not required to consider face-mask wearing as a normal day-to-day activity. The claimant had not relied on it in her impact statement, and it was not so obviously raised that the Tribunal had to address it.

6. The disability issue was remitted for determination afresh by a differently constituted Employment Tribunal.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the disability issue for fresh determination by a new Employment Tribunal: [2025] EAT 39.
• Employment Tribunal: Employment Judge Shore held that the claimant was not disabled at the relevant times and dismissed her disability-discrimination claims. The judgment was sent to the parties on 12 January 2024.