In order to decide whether a claimant has a legitimate complaint (which in this case concerned disability discrimination), the Employment Appeal Tribunal (EAT) held in Rooney v Leicester City Council that tribunals must always engage in reasoning that adequately analyses the facts put before them.
Basic facts
Ms Rooney, a childcare social worker, started experiencing menopausal symptoms in August 2017. These included “hot flushes and sweating, palpitations and anxiety, night sweats and sleep disturbance, fatigue, urinary problems and headaches”. She spent prolonged periods in bed due to exhaustion as well as suffering from dizziness, incontinence, and joint pain. She also complained that her symptoms had made her very forgetful. For instance, she forgot to attend events, meetings and appointments; she forgot to put the handbrake on her car, forgot to turn off the cooker and iron and to lock up her house.
She also complained of work-related stress as a result of having to work long hours with inadequate management support. These complaints were in addition to stress at home in her role as carer for her mother and husband.
In April 2018, an occupational health report said she was fit to continue in her current role. She was given a written warning in May 2018 after being off sick with work-related stress. She resigned with effect from the end of October 2018 and claimed disability discrimination, among other things.
Relevant law
The Equality Act states that a person has a disability if they have a physical or mental impairment which has a “substantial and long-term adverse effect” on their ability to carry out “normal day-to-day activities”. According to case law, the “effect” must be more than minor or trivial.
Tribunal decisions
Dismissing her claims, the tribunal found that her medical records did not support her impact statement. Firstly, she had not mentioned her menopausal symptoms to her GP until February 2017; and secondly, she had not made any references to stress at home between October 2015 and December 2017. It concluded that as she provided care to others, she must be able to carry out some day-to-day activities.
Although she talked to her doctor in December 2017 about stress at work (and again in January, March, and August 2018), she did not refer to struggling with anxiety and depression until the end of August 2018. At this point, the tribunal noted that she was fit enough to attend the gym, to go swimming and to go running.
It concluded that although Ms Rooney had a mental impairment, there was no evidence of physical ailments which were long standing and had a substantial adverse effect on her ability to carry out day-to-day activities. As she did not have a disability, the tribunal struck out her claim. Ms Rooney appealed.
EAT decision
Allowing the appeal, the EAT held that the tribunal’s reasoning and conclusions were at odds with the detailed descriptions given by Ms Rooney with regard to her menopausal symptoms. In particular, it was not clear how the tribunal had come to the conclusion that her physical impairments had not lasted or were unlikely to last for 12 months, given that the menopausal symptoms started in August 2017 and were still ongoing when she resigned at the end of October 2018.
Equally, as she had reported that her symptoms had resulted in her becoming very forgetful and of having to spend long periods in bed, it was unclear how the tribunal could have concluded that this evidence did not demonstrate an effect on day-to-day activities that was more than minor or trivial.
The EAT therefore remitted the claim back to the same tribunal to consider these issues.
Comment
This decision is a cautionary tale more than anything else. At its simplest, it shows how easy it is to lose sight of the wood for the trees where there is evidence which does not obviously mesh together. It is too a reminder that whilst the definition of disability is comparatively straightforward, it is also affected by a great deal of nuance which must also be accounted for. But as much as anything else, the unexplained priority given to “gaps” in the medical records over the claimant’s own testimony reminds us of the old adage that an absence of evidence is not evidence of absence.