F v Cleveland Police Authority – disability discrimination and evidence in the Employment Tribunal

In today’s article we’re going to look at the Employment Appeal Tribunal’s judgment in F v Cleveland Policy Authority.

The facts in F v Cleveland Police Authority

The Claimant was employed by Cleveland Police Authority in February 2004 as a civilian worker. She was dismissed in February 2010 on allegations of misconduct.

She subsequently made a claim to the Employment Tribunal on the grounds of unfair dismissal, direct disability discrimination, failure to make reasonable adjustment, and victimisation. A Pre-Hearing Review (“PHR”) was subsequently held before a full Employment Tribunal panel. The Employment Tribunal dismissed the Claimant’s claims relating to disability discrimination on the basis that she had not provided sufficient medical evidence to the Tribunal (she had not provided medical notes as requested) and that the Tribunal doubted her credibility as a witness.

The Claimant appealed the decision of the Employment Tribunal and sought to adduce new evidence of her disability at the appeal.

The law

The law relating to proving disability discrimination

Under the Equality Act 2010 (and under the previous Disability Discrimination Act 1995, under which F v Cleveland Police Authority was pleaded) the Claimant must prove on the balance of probabilities that he or she is disabled, and is therefore entitled to claim under the various disability discrimination provisions (such as direct disability discrimination, indirect disability discrimination, failure to make reasonable adjustments etc.).

To prove on the balance of probabilities that they’re disabled, the Claimant must therefore show that:

  • he or she is mentally or physically impaired
  • their employer knew of their disability or that their disability is likely to be an advantage
  • the impairment affects the worker’s participation in professional life on a daily or frequent basis
  • the effect of the disability is substantial (more than trivial or that the worker has been medically advised not to carry out the work);
  • they could have carried out the work but for the impairment; and
  • the disability is long term (more than 12 months in duration or for the rest of the worker’s life)

The law relating to seeking to present new evidence at the appeal stage

Claimants can seek to adduce new evidence at the Employment Tribunal under the principle in Ladd v Marshall. This principles states that new evidence is adducible if:

  1. The evidence in question could not have been obtained with reasonable diligence on the behalf of the Claimant for use at an Employment Tribunal hearing; and
  2. The evidence is relevant and would have an important influence on the outcome of the hearing; and
  3. The evidence is credible

The Employment Appeal Tribunal’s judgment

The Employment Appeal Tribunal allowed the Claimant’s appeal under Ladd v Marshall principles (explained below). Although the Employment Appeal Tribunal noted the findings of the Employment Tribunal relating to the credibility of the Claimant, it considered the appeal well-founded. It found that:

  1. The Claimant was prevented from obtaining the necessary evidence because of the fault of her GP surgery and had been reasonably diligent in trying to obtain the information; and
  2. The evidence relating to her medical notes was relevant to determining whether the Claimant was disabled for the purpose of the Disability Discrimination Act 1995; and
  3. The medical notes were credible evidence

The case was therefore remitted to the Employment Tribunal.

Practical tips

  1. Make sure that you’ve got all evidence prepared for the Employment Tribunal
  2. If you can’t get all the necessary evidence, attempt to get the Hearing postponed – giving good reasons
  3. If you can’t get the Hearing postponed, make it clear to the Employment Tribunal that you’ve made reasonable attempts to get hold of the necessary evidence, that the evidence is important, and that the evidence is relevant