The English Employment Appeals Tribunal (EAT) has found that the Employment Tribunal (the Tribunal) erred in law when ruling that a claimant, Mr. Elliott, who suffers from both Autism Spectrum Disorder and Asperger’s Syndrome, was not disabled within the meaning of section 6 of the Equality Act 2010.
The claimant worked for Dorset Council as a Geographical Information Systems Manager before a dispute arose regarding whether or not the claimant had been falsely recording his working hours. This eventually led to disciplinary proceedings. The claimant contended that he found it difficult to accept the new time management rules in place and also found it difficult to communicate with his new manager. Because of this, the claimant’s union representative suggested that he should consider obtaining a referral for assessment to establish whether he was on the autism spectrum.
While the medical assessments were undergoing, the claimant accepted redundancy on the understanding that the disciplinary proceedings would be discontinued and he could leave with redundancy and notice pay.
One year on, the Nurse Specialist in the Community Adult Asperger Service gave his opinion that the claimant met the criteria for a diagnosis of an Autism Spectrum Disorder and Asperger’s Syndrome causing him “...difficulty processing other people’s emotions; …finding it difficult to cope with changes of plan; black and white thinking; and taking people very literally; and, procedural compliance and dislike for any digression from rules, established policy or procedures.” Thereafter, the claimant took action for unfair dismissal and discrimination on the grounds of disability.
Despite accepting this evidence, the Tribunal concluded that the claimant “was not disabled, because his impairment did not have a ‘substantial’ adverse impact on his ability to carry out day-to-day activities ...the adverse impact on Mr. Elliott was no more than minor”. Because the Tribunal did not consider the claimant to be disabled, his claim for unfair dismissal and discrimination was dismissed.
However, the EAT ruled that the Tribunal erred in law when reaching its conclusion. Firstly, the Tribunal wrongly focused on the day-to-day activities that the claimant could do, instead of those that he could not do, or could do with difficulty.
Secondly, the Tribunal wrongly focused on the claimant’s coping strategies without considering whether they might fail in certain circumstances.
Thirdly, the claimant was wrongly compared to the general public rather than to how he would be without his impairment.
Lastly, the Tribunal did not consider all relevant issues in the underlying claim that the claimant’s condition affected his ability “to deal with changes of procedure” and “communicate properly with his line manager”.
The EAT ruled that the matter should be remitted to a new tribunal in light of its findings.
Click here to read the Employment Tribunal’s decision 20 December 2019.
Click here to read the Employment Appeal Tribunal’s decision 4 February 2021.