Disability: cancer, coping mechanism and impairments
The Employment Appeal Tribunal (EAT) has held in the case of Primaz v Carl Room Restaurants Ltd t/a McDonald's Restaurants Ltd and ors that the tribunal should not have considered the adverse effects of the claimant's coping mechanisms to manage her epilepsy and vitiligo when determining whether her impairments had a substantial adverse effect on her day-to-day activities.
The tribunal had also been wrong to fail to conclude that a brain tumour that the claimant had removed ten years earlier was cancer for the purposes of establishing a disability under the Equality Act 2010.
The claimant brought a disability claim based on multiple incidents that she alleged occurred in 2018/19. As a preliminary issue the tribunal had to determine whether she had a disability. She was diagnosed with epilepsy in 1996 and, during treatment for this a brain tumour was discovered which was removed in 2008. Although her medical records at the time stated that the tumour was benign and did not use the word "cancer" the claimant referred to current Public Health England (PHE) guidance which states that such tumours are considered to be cancer. She argued that she had a disability and that her cancer had induced other illnesses (including her epilepsy and vitiligo) which also satisfied the definition of disability. She took steps to avoid what she believed to be triggers, including coffee, alcohol, and cleaning products. She refused to take prescribed medication, contrary to medical advice.
The tribunal found that the claimant was not disabled on the basis of the tumour which it could not conclude was cancer. It also held that, even had she had cancer, as the tumour had been removed in 2008 she no longer had it at the time her claims related to. It rejected her case that cancer was the continuing cause of her epilepsy and vitiligo, though it did accept that she was disabled by reason of her epilepsy. It held that her avoidance behaviour had resulted in the adoption of a lifestyle which, with her post-seizure symptoms, gave rise to a substantial adverse impact on her ability to do normal day-to-day activities.
On appeal the EAT held that the claimant had had cancer as, in its view, the PHE material could fairly be regarded as a reputable and reliable source. However, it held that the tribunal was entitled to conclude that the claimant did not still have cancer at the time to which her complaints related. The EAT then considered the issue of whether the claimant's impairments had an adverse effect on her ability to carry out normal day-to-day activities and concluded that the question was an objective one and could not be determined by a claimant's subjective beliefs about how to manage their conditions. The tribunal had to disregard the claimant's coping mechanism even though she strongly believed that they were necessary. Instead it should have considered the impact that the actual conditions had on the claimant's day-to-day activities. The case of whether or not she was disabled was remitted to a fresh tribunal.
Take note: The decision in Primaz confirms that the PHE material on cancer is valid evidence on which to rely. Here the tumour that the claimant had removed may have been benign, but the PHE material made it clear that it was considered to be malignant because it had a propensity to spread. The decision also makes it clear that if a claimant follows medical advice to avoid certain activities because of a risk of triggering or exacerbating a condition then objectively the impairment would affect the ability to engage in those activities. However, where a claimant was relying purely on her own belief in avoiding certain activities and there was no evidence that she was right in what she believed it would not be possible to establish the necessary causation.