Friday, 3 August 2012

Sud v London Borough of Ealing (Disability Discrimination) [2012] UKEAT 0482_11_2905 (29 May 2012)



The Employment Appeals Tribunal this week had to decide whether in the joint appeals of separate claims made by the appellant, Ms Sud. Her first initial claim failed in all respects including that her employer had failed to make reasonable adjustment to her working environment to make allowance for her to continue her job with her physical disability. There was also a costs award that she should pay 50% of the Council’s costs for the litigation as the hearing deemed “unreasonable” when there was not a reasonable chance of success. Permission was granted to appeal these decisions on in February of this year with one of the main points of contention being the medical evidence used in the original case amounting to the claimant having impaired concentration due to her disability and whether her “workplace phobia” in conjunction with her mobility issues could be taken into consideration.

The Upper Tribunal re-examined the evidence to determine whether the first-tier erred in law by discounting Ms Sud’s illness under the Disability Discrimination Act (which has now been superseded by the Equality Act 2010).

They held “In our judgment, therefore, the Employment Tribunal erred in failing to consider the paragraph 6 of Schedule 1 issue.  Given its finely balanced decision in respect of disability on this basis, it is at least possible that, had they considered that issue on that basis, having regard to Dr Royston’s evidence, the balance might have been tipped so that she satisfied the statutory criterion” (paragraph 14 per Mr Justice Wilkie). Therefore she ought to have been considered disabled under the meaning of the Act. The Tribunal then had to judge whether discrimination arose from this disability and found that it had not, causing the previous finding made that she was considered disabled, purely an academic point. The Upper Tribunal therefore dismissed the appeal.