In Lee v HSBC Bank Plc, Lee suffered from moderate anxiety and mild depression resulting in disturbed sleep, which in turn caused tiredness and heightened emotions. This had an intermittent effect on her breathing, resulting in panic attacks. However, the ET noted that the medical records produced did not bear out the effects on Lee’s day to day activities as she described them. Furthermore, the ET found that during the relevant period of her medical suspension from February until her dismissal in August, she did not take her prescribed medicine, diazepam and duloxetine, but relied on herbal relaxants, having found her medication to be ineffective. The ET also noted that during her medical suspension Lee continued to do an eight-hour Saturday shift for a different employer. The ET concluded that the adverse effect of Lee’s condition on her day to day activities was minor, but not “substantial” within the statutory definition of disability. Therefore, she was not disabled.

Lee appealed. She argued that the ET failed to consider Lee’s medical absence from work, which was itself a substantial adverse effect on her ability to carry out normal day to day activities, supported by the fact that Lee’s GP had certified her as unfit for work.  The EAT rejected the appeal. While case law has held that a medical certificate can indicate a substantial effect for the purposes of the statutory definition of disability, it is not conclusive. The substantial effect question remains one of fact for the ET. The ET had taken the whole of the evidence into account, including Lee’s oral evidence, which it found to be unreliable and inconsistent. Having made that assessment, the conclusion that Lee’s condition had a minor, but not substantial effect on her normal day-to-day activities was one the ET was entitled to reach. This sits squarely with the statutory guidance on the meaning of ‘substantial’ within the meaning of disability, i.e. it is a limitation going beyond the normal differences in ability which may exist among people and one that is more than a minor or trivial.

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