For a claim of disability discrimination to succeed, the claimant has to show that they have an impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. In Olukanni v John Lewis plc, the Employment Appeal Tribunal (EAT) held that the tribunal was entitled to ask for practical examples of the adverse effect that Ms Olukanni claimed her disability had on her.

Basic facts 

Ms Olukanni, who worked as a selling assistant for John Lewis, brought a claim alleging that she suffered from a form of communication disorder called semantic pragmatic disorder which meant that she:

  • Was frequently anxious because she often missed the point of what people were saying to her and took things too literally
  • Was more sensitive than the average person
  • Tended to react too quickly with the result that she did not take time to process what she had been told, adding to her anxiety
  • Found it hard to change and would become anxious if she was asked to do something in a different way.

An assessment carried out by an independent Speech and Language Therapist found that she had trouble following oral instructions if they were not in a simple form and that she had difficulty in following conversations and that these difficulties had a significant adverse effect on her ability to carry out new activities.  However, when she was familiar with an activity and no changes were made to it, she could use strategies to support herself.

Ms Olukanni claimed that the store failed to make reasonable adjustments for her disability.

Tribunal decision 

On the basis of the expert assessment the tribunal accepted that Ms Olukanni had a mental impairment which made it difficult for her to retain information in her auditory memory.

However, it did not accept that this impairment had a substantial adverse effect on her ability to carry out normal day-to-day activities. Although the expert assessment had found that this did have a substantial effect, she had not provided any examples of how it affected her, whether relating to new or existing activities. Although she said that she sometimes had to ask for instructions to be repeated, her line manager made clear in her evidence that so did other non-disabled members of staff on occasions.

The manager also told the tribunal that the role of selling assistant was the same across all departments. Although some training might be required on the different products that each department sold, the work was very much the same from day-to-day. For her part, she had not found that Ms Olukanni had trouble following instructions.

The tribunal concluded that as the effect of the impairment was not substantial, Ms Olukanni did not have a disability. She appealed arguing that the judge was wrong to reject her evidence about the adverse effect because it was not corroborated by independent evidence; and/or that she had not given sufficient examples of how it manifested itself.

EAT decision

Dismissing the appeal, the EAT held that it was relevant for the tribunal to ask for practical examples of the adverse effect, particularly given the “countervailing evidence” provided by her line manager.

It concluded that the tribunal judge had taken fair and appropriate account of all the evidence and had not imposed a requirement of corroboration or independent support of Ms Olukanni’s evidence.