Tribunal Upholds Appeal in Disability Discrimination Case: 'Likely to Recur' Test Misapplied
The Employment Appeal Tribunal has allowed an appeal in a disability discrimination case, finding that the original tribunal improperly assessed the 'likely to recur' provision of the Equality Act 2010.
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Disability Discrimination Claim Reinstated After Appeal
The Employment Appeal Tribunal (EAT) has overturned a decision by an employment tribunal, ruling that the tribunal erred in its assessment of whether a claimant's disability should be considered ongoing under the Equality Act 2010. The case, Roofe-Stewart v MacIntyre Care Ltd, centred on whether the effects of the claimant's Mixed Connective Tissue Disease (MCTD) were likely to recur, even during a period of remission.
Background of the Case
Mrs Alcian Roofe-Stewart, a Support Worker Practitioner, was dismissed by MacIntyre Care Ltd in June 2021 for refusing to participate in mandatory Covid-19 testing procedures. She filed claims for unfair dismissal and disability discrimination, citing her MCTD, diagnosed in 2010, as the basis for her disability claim. The initial tribunal dismissed the disability discrimination claim, finding that her condition was not having a substantial adverse effect on her daily activities at the time of her dismissal.
Key Legal Issue: 'Likely to Recur' Clause
A crucial point in the appeal was Schedule 1 paragraph 2(2) of the Equality Act 2010, which states that if an impairment ceases to have a substantial adverse effect, it should still be treated as continuing to have that effect if that effect is likely to recur. The EAT found that the original tribunal did not properly consider whether Mrs Roofe-Stewart’s MCTD was likely to flare up again, even if it was in a quiescent state at the time of her dismissal.
Judge Auerbach emphasized the low legal threshold for satisfying the 'likely to recur' test, highlighting that 'likely' means 'could well happen' and 'substantial' means 'more than minor or trivial'. The EAT determined that the employment tribunal's conclusion on this point was 'unsafe'.
Impact of the Ruling
The EAT has remitted the case back to the employment tribunal for reconsideration of the 'likely to recur' issue. The tribunal is instructed to determine whether Mrs Roofe-Stewart's condition should be treated as having a continuing adverse effect on her daily activities. The EAT also suggested that the tribunal consider whether further medical evidence is needed to make that determination.
The EAT highlighted the absence of a case-management hearing prior to the initial tribunal's decision, during which the need for a medical report specifically addressing the 'likely to recur' issue could have been discussed.
Future Proceedings
The case will now return to the employment tribunal, where a fresh hearing will take place to address the specific issue of whether Mrs Roofe-Stewart’s condition was likely to recur. This may involve obtaining additional medical evidence to fully assess the potential for future flare-ups.
Read the entire judgement here: Mrs Alcian Roofe-Stewart v MacIntyre Care Ltd [2025] EAT 24
