Employment Appeal Tribunal allows appeal from dismissed social worker who had anxiety about attending court

The Employment Appeal Tribunal (EAT) has allowed an appeal brought by a social worker relating to her treatment during employment and dismissal by Newport Council, and substituted a decision that the claimant was “at all material times a disabled person”.

Outlining the background to the case in Williams v Newport City Council (Disability Discrimination) [2023] EAT 136, the EAT said the claimant is a social worker, who has been employed by the council since 2011.

In March 2017, her employer indicated that, from the end of that month, she would be required as part of her duties, as and when necessary, to attend court. 

“She had previously been traumatised by her experience during a court appearance in June 2016, and being told of this requirement in March 2017 caused a severe anxiety reaction”, the EAT said.

The claimant took sickness absence, during which the council did not remove the requirement to attend court. An internal grievance by the claimant, and appeal, against the decision were unsuccessful.

Newport maintained that this was an “essential element” of the claimant’s duties.

In September 2018, the claimant was dismissed under the council’s managing attendance procedure.

The claimant complained of disability discrimination and unfair dismissal. The respondent council did not admit disabled status.

That issue, and the substantive claims, were heard together inCardiff by Employment Judge S Jenkins, Ms C Peel and Mrs L Owen during May 2021.

The live Equality Act 2010 complaints that fell to be decided were of “discrimination arising from disability, indirect discrimination and failure to comply with the duty of reasonable adjustment”.

The tribunal found that the claimant had a mental impairment at all relevant times, from when her absence began, until her dismissal. However, it found that, from around the end of August 2017, her mental health had improved to the point where she would have been able to carry out all of her duties apart from attending at court.

The Employment Tribunal found that attending at court was not, itself, a normal day-to-day activity and, on that basis, the claimant was not a disabled person.

In its reserved decision the tribunal dismissed all of her complaints.

The claimant appealed against the tribunal’s decision on disabled status. 

The EAT set out the grounds of appeal as follows:

• First, it is said that the tribunal erred by failing, in its concluding analysis, to consider the effect of the claimant’s impairment on her ability to carry out normal day-to-day activities. That is having regard to a number of its findings, but in particular its findings about the periods during which she was certified as unfit to work at all and its findings as to the triggering effect of being subject to a potential requirement to attend court on her ability to return to work, even during the period when her health was found to have improved.
• Secondly, it is said that the tribunal impermissibly cherry-picked, and took a selective approach to, the claimant’s evidence in relation to such matters as her ability to carry out domestic and household tasks. It is said to have failed properly to focus on what she could not do, or could only do with difficulty, and to have wrongly concluded that after around August 2017 the impairment no longer had more than a minor or a trivial effect on her ability to carry out day-to-day activities outside work.
• Thirdly, it is said that the tribunal erred in concluding that attending at court, either inherently and/or having regard to the underlying tasks involved in doing so, did not amount in any sense to a normal day-to-day activity; and/or the tribunal failed sufficiently to explain its conclusion that it did not. Ms Misra KC [ on behalf of the claimant] confirmed that issue was not taken with the conclusion that attending court was not a normal day-to-day activity outside of the work context.

The EAT held that the tribunal had erred because it had “failed to take into account its own findings that the claimant’s anxiety at the prospect of being required to attend at court, if or when she returned, meant that she was not fit to return to her job at all unless or until the respondent removed that requirement”. 

The EAT noted that both the council at the time, and the tribunal, accepted that this was “genuinely the case” and “supported by medical advice and evidence”.

The EAT continued: “Accordingly, the tribunal could only properly have concluded, in light of these facts, that the impairment which she had throughout the material period, also throughout that period had a substantial adverse effect on her ability to carry out normal day-to-day activities.

“The tribunal could also, on the facts found, only have properly concluded that that effect was, throughout, long-term.”

Allowing the appeal, the EAT concluded: “We will therefore substitute our own decision for that of the tribunal, the overall conclusion therefore being that the claimant was a disabled person throughout the relevant period”.

Lottie Winson