It might be, held the EAT in the appeal of Ms Sanju Pal v Accenture.
The case will be remitted (sent back down) to be reheard by a new panel in the Employment Tribunals. This effectively means that the case starts all over again. The decision the ET already reached is unsound and cannot stand.
Ms Pal’s appeal to the Employment Appeal Tribunal contained a number of grounds of appeal, including that the first instance Employment Tribunal in 2022 had erred in law in assessing a 100% Polkey reduction by applying an incorrect counterfactual and assessing the likelihood of a fair dismissal where the employer adopts an “up or elsewhere” or “progression-based model” to manage performance.
The tribunal also failed to analyse whether Ms Pal, who has endometriosis, was a disabled person at the material times and whether she had been subject to discrimination because of something arising in consequence of disability (section 15 disability discrimination).
In this blog, I will look only at the issue around endometriosis in relation to the definition of disability.
Ground 3 of Ms Pal’s appeal is that the tribunal erred in finding that she was not disabled by reason of her endometriosis, and even if she was, the respondent employer did not have knowledge.
An employer can only discriminate on grounds of disability if it has expressed or implied knowledge of disability. Knowing about a medical issue does not necessarily equate to knowing that a disability might be in play. There is no automatic finding of disability on diagnosis of a medical issue. The burden is on the claimant to demonstrate that they have a physical or mental impairment and that their impairment meets the section 6 definition of disability, namely that it is long-term and has a substantial adverse impact on normal day-to-day abilities.
The EAT cited the case of Goodwin v Patent Office [1999] ICR 302, which broke the predecessor provision from the Disability Discrimination Act 1995 (which is carried over into the Equality Act 2010 at section 6) into four components:
- The impairment condition
- The adverse effect condition
- The substantial condition
- The long-term condition
The judgment in Goodwin added that Tribunals “might find it helpful to address each of the questions but at the same time be aware of the risk that disaggregation should not take one’s eye off the whole picture.”
The knowledge defence is often deployed by companies wishing to defend disability discrimination claims. Tribunals rarely find implied knowledge in practice despite the EHRC Statutory Code of Practice on Employment suggesting that it is possible to do so.
Paragraphs 100 to 104 of the EAT’s judgment are highly critical of the ET’s approach to assessing whether Ms Pal was disabled by her endometriosis. The EAT concluded that the ET had effectively entirely disregarded the evidence of the claimant in her impact statement.
There was no dispute of the fact that Ms Pal had endometriosis. She had been absent from work to recover from a surgery related to her endometriosis. The Employment Tribunal held that she had not proven that there was an ongoing substantial adverse effect or that the impairment was likely to last for more than a year. This appears to be because they disregarded her witness evidence on this despite the fact that it was supported by medical evidence from Occupational Health and Mr Emeka Okaro. The tribunal should have at least considered whether it accepted some of what the claimant stated in her impact statement about the effects of endometriosis on her ability to carry out normal activities. The claimant’s evidence was supported by significant medical evidence, which the tribunal also failed to analyse.
The reasoning of the ET was wholly inadequate as to the issue of disability.
The EAT held that the issue of disability will have to be considered entirely afresh. We watch with interest to see how the issue is decided when the case returns to the Employment Tribunals. Watch this space.
This blog was written by Anita Vadgama, Partner at didlaw and a specialist in disability discrimination law.
