In Roofe-Stewart v MacIntyre Care Ltd [2025] EAT 24 (26 February 2025) the EAT (HHJ Auerbach) found that a first instance tribunal had erred when considering whether the claimant’s disability was likely to recur.
Mrs Roofe-Stewart had a chronic condition (Mixed Connective Tissue Disease, MCTD). She was diagnosed in 2010. Her condition had been inactive since 2015 with no reported flare ups despite the cessation of her immune-suppressant medication. In January 2021 she was dismissed for refusing to participate in her employer’s Covid-19 testing procedures. She brought claims which included disability discrimination.
A judge ruled at a preliminary hearing in September 2022 that she was not disabled for the purposes of the Equality Act 2010. The judge found that her disability had ceased to have a substantial adverse effect on her normal day to day activities and that the effect was not likely to recur. Mrs Roofe-Steward appeal the judgment.
The EAT ruled that the ET was entitled to find that the condition was inactive and that it did not, at the relevant time (the time of the dismissal) have the required substantial adverse impact which EqA section 6 requires. A shielding letter issued by the NHS was not of itself proof of disability for legal purposes. The EAT did find however that the tribunal had failed to consider whether the impairment was likely to recur.
The legal test for likely to recur is a low hurdle. It does not mean more likely than not. It means could well happen. The tribunal had not properly applied its mind to whether MCTD, which was still present, could well result in another flare up that might be substantial. Remember also that substantial is also a low hurdle and means only more than minor or trivial impact on normal day to day activities. If the EAT was wrong and the ET had sufficiently considered this point it had provided no evidence that it had in its reasons for the decision which was an error.
The EAT also noted in support of its ruling that there had been no proactive judicial consideration as to whether a direction should have been given to adduce specialist evidence on the likelihood of substantial adverse impact recurring. Mrs Roofe-Stewart appeared as a litigant in person. The EAT opined that the judge should have taken a more proactive approach – either listing a case management hearing or making directions regarding a bespoke medical report.
There are several important lessons to be gleaned from this case:
- If you are appearing in a disability discrimination case as a claimant it is in your best interests to ensure that you have adequate and appropriate medical evidence in support of your case. This need not mean an expensive and bespoke medical report. Extracts from an established medical journal on the condition you are suffering would be good evidence.
- With chronic conditions one must always consider the issue of whether the impact was present at the relevant time (the moment when the thing you are complaining about occurred i.e. when you suffered the discriminatory act or were dismissed because of your disability or something connected to it) but also if it was not whether you can plead your case based on the fact, as is often the case, that a chronic condition is likely to recur and have a substantial impact when it does. (Remember the rules about disability change slightly for recurring conditions and those which wax and wane).
- Judges have an active duty to assist litigants in person. LIPs are not legally trained and cannot be expected to present their case at the level a professional advocate would. Respondents to claims from LIPs can also be helpful in this regard because it will only get in the way of a fair hearing and/or lead to an appeal if the Claimant loses on a technicality that no one has adequately explained or considered.
This blog was written by Karen Jackson, CEO of didlaw and a leading expert in disability discrimination in the workplace.
