Tribunal finds employee disabled when evidence indicates otherwise

Employers should take comprehensive notes at hearings when defending claims

The case Department for Work and Pensions v Conyers shows how unpredictable disability discrimination cases can be.

Facts
Conyers had been employed by the Department for Work and Pensions for nearly 35 years. Towards the latter part of her employment, she had had substantial periods of absence. There were two periods of particular importance. The first lasted from 14 November 2007 to 11 April 2008; the second started on 16 March 2009 and continued until her dismissal on 12 May 2010. Following these lengthy periods of absence for various reasons, she was dismissed on the grounds of capability because of her poor attendance record. She subsequently brought claims for unfair dismissal and disability discrimination.

Tribunal
The crux of the case concerned Conyers establishing she was disabled for the purposes of the Disability Discrimination Act 1995 (the relevant legislation at the time, now replaced by the Equality Act 2010). Her claim was based not solely on her physical problems but also because of a mental impairment which had a substantial adverse effect on her ability to carry out normal day-to-day activities.

The evidence put before the employment tribunal at a preliminary hearing to decide this issue included a report by a medical expert, who had been jointly appointed by the employee and the employer, which concluded that Conyers' symptoms did not fulfil the definition of a disabled person during the first period of her absence. In addition to this, Conyers conceded in her witness statement that she was not disabled, and she restated this during her cross-examination. Nevertheless, the tribunal found that Conyers was in fact a person with a disability within the meaning of the legislation during both periods of absence. The employer appealed.

EAT
The Employment Appeal Tribunal allowed the appeal on the grounds that there was no evidence justifying the tribunal's finding in relation to the first period of the claimant’s absence. Interestingly, during the appeal hearing, the employer and employee were unable to agree the exact evidence given during the employment tribunal judge's own questioning of the claimant. The employer was able to provide a detailed note of the hearing, showing that no further material evidence had been given with regard to Conyers’ first period of absence. Conyers disagreed but was only able to provide her recollection of events. The EAT obtained the employment tribunal judge's notes which were found to support the employer's position. The case was remitted to a fresh tribunal to decide whether Conyers was a person with a disability for her second period of absence.

Comment
This case shows how unpredictable tribunals can be. Most employers in the DWP’s position would have been pretty confident that the tribunal would not have found that the claimant in this case was disabled when:

• the joint expert report said she was not

• the witness statement said Conyers thought she was not

• the evidence from Conyers on the day indicated she was not disabled.

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