Menu
Close
Search
Generic filters

"The barristers are reliable specialists in their field who provide high quality legal advice and representation. They also understand their clients"

Chambers & Partners
10/08/2021

Tom Kirk successful in Seccombe v Reed EAT appeal

News

The EAT handed down judgment in Seccombe v Reed in Partnership Limited UKEAT/0217/20 on 3 August 2021.

HHJ Tayler held that the Tribunal had not erred in its findings on disability and knowledge. The judgment provides a helpful summary of the law particularly for cases of alleged mental impairment where the question of whether the impairment is ‘long term’ is often at issue. It also confirms that whilst an employer’s knowledge is irrelevant to the assessment of disability, what a claimant says or does not say to others about their impairment can nonetheless be taken into account.

Tom Kirk of Old Square Chambers acted for the successful Respondent and was instructed by Ajay Khandhar of Reed Group Legal Department.

Background

The Claimant was employed as a Supply Chain Manager on extended probation. After a period of certified sickness absence precipitated by a traumatic event, he was summarily dismissed on performance grounds.

The Claimant claimed he was disabled due to severe anxiety and depression and had been since 2007. The Claimant brought claims for disability discrimination and/or failure to make reasonable adjustments.

At a preliminary hearing, the Employment Tribunal accepted that the Claimant had suffered varying degrees of anxiety and depression that had a substantial adverse effect on three occasions which coincided with times of significant difficulty in the Claimant’s life. Two of these, in 2008 and 2015, preceded the Claimant’s employment at the Respondent and the third was the traumatic event in 2017 of which the Respondent was aware.

However, the Tribunal found the Claimant was not a disabled person at the relevant time as there was no cogent evidence of a condition that was likely to recur. The Claimant had never been diagnosed with “severe anxiety and depression”. The GP notes showed two previous episodes of mental impairment, depression in 2008 following back surgery and marital difficulties, and stress at work and anxiety in 2015, but the medical evidence did not support the Claimant’s claim that his impairment had continued to have a substantial adverse effect over a number of years.

The Tribunal accepted and found important on this point the evidence of two of the Claimant’s colleagues (one of whom had also worked closely with the Claimant at a previous employer in 2011-15) that the Claimant did not display or tell them of any alleged underlying mental impairment or related difficulties.

The Tribunal went on to find that even if it were wrong about disability, the Respondent did not have actual or constructive knowledge of disability at the relevant time. The Respondent knew of the circumstances of the Claimant’s distress in 2017 and was entitled to conclude it was a result of an appalling but one-off incident, after which he had been certified as fit to return to work. The Claimant never argued the possibility of a mental impairment or disability during his employment. It was reasonable for the Respondent to assume the matter was a one-off event which had effectively been resolved.

The Claimant appealed both disability and knowledge. The EAT dismissed the appeal.

Relevance of what the Claimant says or does not say to the assessment of disability

On appeal the Claimant argued the Tribunal had erred in law by taking into account, in its analysis of disability, the Claimant’s failure to inform his colleagues of his impairment. The Claimant relied on Lawson v Virgin Atlantic Airways UKEAT/0192/19 for the proposition that the Respondent’s knowledge of disability is irrelevant to the question of whether a person is disabled.

The EAT disagreed, stating that, whilst the Respondent’s knowledge is not relevant,

“That does not mean that what a person says, or does not say, about their abilities is irrelevant to the objective question of whether, at the time in question, the person was disabled; often the claimant will be best placed to explain what effects any impairment has on day-to-day activities. What is important is what the person says, rather than to whom it is said – so, for example, if there is a period in respect of which there is no medical evidence the fact that a claimant told friends, family or an employer that he was continuing to be affected by the condition could be relevant. Similarly, it could be relevant that a claimant did not tell people that an impairment was continuing to have an effect.” ¶33

It was argued for the Claimant that although what a person says might be relevant, if they do not mention their impairment to others this should never be taken in account because of the sensitivity of the issue. The EAT disagreed,

“While caution should be taken to considering what is not said about an impairment, because disabled people may wish to maintain their privacy, particularly if they perceive that there may be an adverse reaction to their disability, there is no rule of law, as the claimant’s Counsel contended for, that the fact that a claimant does not refer to ongoing symptoms can never be relevant to the question of disability. In a case in which an individual has previously openly spoken about an impairment the fact there is a significant period during which no mention is made of the impairment could potentially be relevant to the issue of disability. This is not a matter of law, but one of fact and degree.” ¶33

Helpful summary of the law

The EAT judgment contains a helpful summary of the law on disability and knowledge, and in particular the principles relevant to assessing whether a condition is “likely to recur” as often arises in mental impairment cases:

Disability

  • The “long-term”’ requirement relates to the effect of the impairment not the impairment itself (¶29);
  • While it is good practice to deal with each of the four conditions identified in Goodwin v The Patent Office [1999] ICR 302 separately, this should not be done by rigid consecutive stages (J v DLA Piper [2010] ICR 1052) (¶32);
  • In considering whether an impairment is “likely” to recur, “likely” means “could well happen” (SCA Packaging Ltd v Boyle [2009] ICR 1056) (¶34);
  • The definition must be met at the time of the alleged discrimination. Anything which occurs after that time will not be relevant in assessing the likelihood of an effect lasting for 12 months (McDougall v Richmond [2008] ICR 431) (¶35);
  • The fact that a substantial adverse effect at the date of alleged discrimination is a recurrence of a previous episode does not necessarily lead to the conclusion that it was likely to recur at that date (Sullivan v Bury Street Capital UKEAT/0317/19) (¶36);
  • The role of experts is to provide evidence, not to determine whether the definition is met (Vicary v BT [1999] IRLR 680) (¶42);
  • The EAT also commented regarding joint expert evidence, that if either party proposes to seek to demolish, or substantially discredit the evidence of a joint expert notice should generally be given so the expert can appear for cross-examination (¶43).

Knowledge

  • Although there is no reference to knowledge in s.13 EqA (direct discrimination), there can generally only be direct disability discrimination if the putative discriminator knows of the disability (¶37);
  • The correct approach to ascertain actual or constructive knowledge is that in A Ltd v Z [2020] ICR 199 (¶41).

 

Case summary written by Emily Skinner.

 

Relevant members
Tom Kirk Emily Skinner

Key contacts

Tom Kirk

Tom Kirk

Emily Skinner

Pupil
Emily Skinner
0
Shortlist Updated

Out of hours

William Meade (Senior Clerk)

07970 649 755

or

Graham Smith (Deputy Senior Clerk)

07795 023 532