Lee v HSBC Bank Plc

Welcome back to your weekly case law update. Last week we looked at the recent Uber decision and how it will impact the gig economy and employment status. This week we are looking at disability discrimination.

The question this week:

Do GP certificates declaring that an employee is unfit for work constitute a substantial effect on day to day activities for the purposes of S6 of the Equality Act?

Mrs Lee, the Claimant, was employed as a cashier by, HSBC, the Respondent, a well-known high-street bank. The Claimant suffered from moderate anxiety and mild depression. The Claimant was prescribed medication for her conditions but did not take it, instead preferring herbal remedies, she also suffered from sleep deprivation, heightened emotions and panic attacks as a result of her conditions.

The Claimant was medically suspended and ultimately dismissed after failing to attend a psychological capacity assessment. She commenced litigation against the Respondent for unfair dismissal and disability discrimination.

At a preliminary hearing the Employment Judge held that the Claimant wasn’t disabled and dismissed the claim, partly due to the Claimant being an unreliable witness but also because the Employment Judge held that the effect of the Claimant’s disability was not substantial. The Claimant appealed and asked the judge to consider fresh evidence which wasn’t available at the time of the original hearing.

At the appeal the Claimant presented GP Certificates stating that she was unfit for the work. The Claimant also argued that work was a day-to-day activity and being signed off from it due to a medical condition should satisfy the substantial effect condition.

The Employment Judge held that despite being signed off work the Claimant was not taking her medication and was also able to work for another employer on days she was not contracted to work for the Respondent. For these reasons, as well as the Claimant’s unreliable account of events, the Judge held that whilst the Claimant was suffering from a condition that was more than trivial it was merely minor and not substantial enough to impact her ability to carry out day to day activities.

The takeaway point:

A GP certificate declaring an employee unfit for work might satisfy the substantial aspect of S6 of the Equality Act. However, if there is evidence that suggests otherwise the ET will consider it and a GP certificate is not the be all and end all of such cases.