At a pre-hearing review an ET held that C was not disabled for the purposes of s.1 DDA 1995. C appealed.
In 2008, C , who was a bus driver, suffered a whiplash injury in an accident. He did not return to work. Initially R’s doctor agreed that C was unfit for work and indicated that C would benefit from physiotherapy to help speed up recovery. However, in February 2009 R’s doctor (Dr Kahtan) advised that C was fit for work. She also stated that C had said a number of things which were inconsistent with him having a disability; for example that he was driving his own car, playing football with his children and lifting weights. After two medical capability hearings C was dismissed for incapability. C denied that he had been properly examined in February 2009 and denied saying the things that Dr Kahtan alleged he had. C brought a claim of disability discrimination. The ET accepted Dr Khatan’s account of the February 2009 meeting and held that C was not disabled.
Since the dispute of fact between Dr Khatan and C did not cover all the activities that C said he could not perform, and since the ET did not make a finding in respect of all of C’s activities, C argued that the ET had wrongly focused on those activities that C could do rather than on those that he could not. The EAT disagreed. It accepted the argument that the correct approach was to examine what C could not do rather than what he could do (Leonard v Southern Derbyshire Chambers of Commerce  IRLR 19) but held that the ET was entitled to reach the conclusion that it did. The ET’s acceptance of Dr Khatan’s evidence was an implicit rejection of C’s credibility and so the ET did not need to refer to every activity C relied upon.
C also argued that the ET failed to have regard to the statutory Guidance in accordance with the decision in Goodwin v The Patent Office  ICR 302. Although the ET, when making its decision, referred to the statutory Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability (2006), it did not refer to any particular part of it. The EAT rejected this argument and stated that it was satisfied, from reading the judgment, that the employment Judge understood the potential relevance of the Guidance and the importance of using it correctly.
The facts of this case are perhaps more interesting and informative than the discussion of the legal principles. The Respondent successfully argued that C’s account of his disability was false and that he was not disabled even though C had produced medical evidence from a consultant and his GP and even though R had dismissed C for incapability. It shows the value of seeking independent medical advice at an early stage and taking a robust approach to the question of whether or not the Claimant has a disability.
The full transcript can be found here: http://www.bailii.org/uk/cases/UKEAT/2011/0400_10_0802.html