In the recent case of Khorochilova v Euro Rep Limited, the Employment Appeal Tribunal (“EAT”) held that a tribunal was not wrong to consider the issue of impairment before the issue of ‘substantial adverse effect’ in a disability discrimination claim.
The Claimant, Ms Khorochilova was employed by Euro Rep Limited, a breeder of insects for animal food from July 2015 until her summary dismissal on 9 February 2017 for issues relating to her management of a cricket colony. She brought a number of claims before the Employment Tribunal (“the Tribunal”) for unfair dismissal, detriments for having made a protected disclosure and disability discrimination. In relation to her claim of disability discrimination, Ms Khorochilova did not identify the disability upon which she relied and only pleaded that her disability caused her to be “somewhat obsessive” about how she does her work and that some people interpreted this as “perfectionist behaviour.” A Preliminary Hearing was listed to consider whether she was a disabled person for the purpose of the Equality Act 2010 (“EqA 2010”) at the material time. Ms Khorochilova relied on a psychiatric report produced in 2010, her GP records and her disability impact statement. It was established that she was claiming that she had a “Mixed Personality Disorder” as her disability.
As part of its assessment, the Tribunal considered Section 6 of the EqA 2010 which requires a tribunal to consider (a) whether a person has a physical or mental impairment; and (b) whether that impairment has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.
From carrying out its assessment, the Tribunal decided that Ms Khorochilova did not meet the EqA test for being disabled and therefore could not pursue her disability discrimination claim. The Tribunal was not satisfied that Ms Khorochilova in fact suffered from Mixed Personality Disorder i.e. she did not have the mental impairment she was claiming. Even if she did, the Tribunal felt that she had not provided sufficient evidence that it had an adverse effect on her ability to carry out normal day-to-day activities. Ms Khorochilova appealed to the EAT on the basis that Tribunal had erred in its approach by considering the issue of impairment before determining the issue of substantial adverse effect and that its’ conclusion that there was no substantial adverse effect was one that no reasonable tribunal, properly considering the evidence, would have reached.
The EAT dismissed the appeal. In reaching its decision, the EAT considered the case of J v DLA Piper LLP where it was held that the Tribunal should not apply a rigid sequential approach to the questions under Section 6 of the EqA 2010. The Tribunal held that the interpretation of this case did not mean that the Tribunal necessarily erred in dealing with the questions in the order they appear in the statutory provisions. Further, the EAT, like the Tribunal, noted that the psychiatric report did not diagnose Ms Khorochilova as having Mixed Personality Disorder but as suffering from problematic personality traits, and further accepted that there was insufficient evidence to demonstrate a substantial adverse effect on Ms Khorochilova’s ability to carry out normal day to day activities from any condition she may have had.
This case acts as a reminder to employers not to overlook the issue of whether or not there is in fact evidence of an impairment (as opposed to just an assertion of one) when considering a disability discrimination issue. Whilst J v DLA Piper LLP says the focus should be on the effect on normal day-to-day activities and that as a matter of common sense if there is an effect it will then normally follow that a claimant has some sort of impairment, an employer can challenge whether there is an impairment at all. If you have any queries relating to this case or would like advice on whether one of your employees will be able to satisfy the legal test under Section 6 of the EqA 2010, please contact any member of the team.