Background
This case concerns Mrs. Alcian Roofe-Stewart’s appeal against an Employment Tribunal (ET) decision at a preliminary hearing that dismissed her disability discrimination claim. Mrs. Roofe-Stewart was employed as a Support Worker Practitioner at MacIntyre Care Ltd from 2009 until her dismissal in June 2021. She was dismissed after refusing to comply with her employer’s mandatory COVID-19 testing procedures.
The Claimant represented herself at the preliminary hearing, and the ET ruled that she was not disabled at the relevant time under the Equality Act 2010, as her condition—Mixed Connective Tissue Disease (MCTD)—was found to be quiescent and not having a substantial adverse effect on her daily activities. She appealed this decision.
Key Issues
1. Definition of Disability and Recurrence of Symptoms
- Mrs. Roofe-Stewart had been diagnosed with MCTD in 2010. The tribunal accepted that she had this condition but ruled that although the condition was likely to satisfy the Equality Act definition of disability in 2015, by 2021, it had ceased to have a substantial adverse effect on her daily life.
- The key legal issue was whether her condition should be considered a disability under Schedule 1, paragraph 2(2) of the Equality Act 2010, which states that if an impairment ceases to have a substantial adverse effect, it should still be treated as continuing if the effect is “likely to recur.”
- The ET found that the claimant’s condition had been dormant for several years and that the Claimant had not provided medical evidence proving a likely recurrence.
2. Failure to Consider Past Disability
- On appeal (now represented), Mrs. Roofe-Stewart argued that she had previously experienced substantial adverse effects from her condition and that the ET failed to consider whether she was protected under the Equality Act as someone with a past disability.
- It was also raised that at the original preliminary hearing, the claimant was a a litigant in person and the particulars sought of her by the tribunal did not raise the concept of past disability and reference the overriding objective and the need to ensure, so far as practicable, the parties are on equal footing.
- The Employment Appeal Tribunal (EAT) found no error in the ET’s approach, ruling that the tribunal was not required to raise this issue unless the claimant specifically advanced it.
3. Evidentiary Issues and Case Management Failures
- The EAT found that the ET had not sufficiently applied the correct legal standard to assess whether Mrs. Roofe-Stewart’s condition was likely to recur.
- The tribunal had relied heavily on medical reports from 2017 and 2020 but did not properly consider whether her condition, as a chronic autoimmune disorder, inherently carried a risk of future flare-ups.
- The EAT also noted that the tribunal failed to explore whether further medical evidence was needed, particularly in relation to the recurrence test.
Employment Appeal Tribunal (EAT) Decision
1. Tribunal’s Decision Was Unsafe
- The EAT ruled that the ET had not properly assessed whether Mrs. Roofe-Stewart’s condition was likely to recur and whether this would meet the legal definition of disability.
- It found that the ET had placed too much emphasis on a lack of medical evidence without considering whether further evidence should have been obtained (and further direction from the tribunal as the claimant was a litigant in person).
2. Case Remitted for Reconsideration
- The EAT overturned the ET’s decision to dismiss the disability discrimination claim and remitted the case for reconsideration.
- A new tribunal will now assess whether Mrs. Roofe-Stewart’s condition should have been treated as a disability under the “likely to recur” test.
- The EAT suggested that a case management hearing should first determine whether additional medical or expert evidence is needed.
Significance
This case is a key reminder that tribunals must fully apply the legal test for recurring disabilities under the Equality Act. Trade union representatives should be aware of the low threshold for proving a disability’s recurrence and ensure that claimants gather appropriate medical evidence. Additionally, the case highlights the importance of effective case management, particularly when dealing with litigants in person who may not be aware of the legal intricacies of their claims.
Outcome
Mrs. Roofe-Stewart’s appeal was upheld, and the case will be reconsidered by a fresh tribunal. This decision reinforces the need for careful legal analysis when determining whether an impairment should be treated as a continuing disability under employment law.
