Did a tribunal fail to apply the correct test when using the term “necessarily predicting” in assessing disability?
No, says the EAT in Martin v University of Exeter.
A preliminary hearing was held to determine the date on which the Claimant’s disability began and when it became long-term for the purposes of section 6 of the Equality Act 2010. The Claimant suffered from PTSD as a result of chancing upon a student trying to hang himself. The tribunal had no difficulty on the evidence in finding an impairment.
Richmond Adult Community College v McDougall means that the impairment must be assessed predictively. A claimant cannot rely on the fact that he has been impaired for a year by the time of the hearing. If the impairment is not long-term, the next test is whether it is likely to be long-term. The relevant test then is SCA Packaging v Boyle, meaning that it “could well happen”.
EJ Roger (sitting alone) made reference in his judgment to “necessarily predicting” the duration of the impairment and unfortunately failed to cite SCA. The claimant asserted that this demonstrated that the tribunal had applied the wrong test. The correct test contains no obligation to demonstrate certainty.
The EAT held that the SCA v Boyle test had been applied correctly despite there being no explicit mention of it. The word “necessarily” was used in a loose colloquial sense. Appeal dismissed.
This case demonstrates the peril of seeking to establish disability without adducing expert medical evidence.
Written by Karen Jackson
This blog first appeared in Daniel Barnett’s employment law bulletin.
The full judgement is available here: