Saidali Khakimov v Amova Asset Management UK Limited [2026] EAT 47

“Since April 2019 and to date, I have suffered from consistent pain/pressure/noise at the back of my head (diagnosed as Functional Neurological Disorder), sleep disorder and abdominal pain (Irritable Bowel Syndrome (inconclusive)), which is a combination of physical and mental impairment that has a substantial and long-term adverse effect on my ability to carry out normal day-to-day-activities. I feel constantly tired, struggle with falling asleep and sleeping uninterrupted hours in mutual causation with head and abdominal pain. As a result I cannot concentrate to such extent that any active thinking (such as thinking deeper or real-time) put significant strain on me. I also experience short-term loss or aggravation of balance and senses due to periodic glitches at the back of my head. I am taking an antidepressant and going to cognitive therapies which seem to only marginally assist me with my day-to-day-activities. I am scared to drive, do not even feel confident in going out on my own, cannot enjoy most of the personal and family activities that I used to enjoy, let alone doing a paid work. For example it takes me 10-20 times more time than before to structure sentences as in this document and sometimes I simply cannot formulate what I want to say and need assistance. I believe I was at all material times since April 2019 disabled within the [EqA 2010] definition...”

“64. The Respondent continued discrimination and harassment throughout 2020 with repeated demands for my attending the occupational health assessment under their arrangement/influence, whilst refusing to make any adjustments to support my recover to work or pay me salary at least whilst I was complaining against the decision of insurance provider to Ombudsman...the Respondent actually instigated the refusal of my insurance claim in order to apply maximum economic pressure and make me accept their terms. 65. Following the Respondent’s failure to force me to submit to their continuous harassment and accept their terms, the Respondent ended my contract of employment without notice on 13 January 2021.”

“In relation to the claim under section 15 of the Equality Act ‘discrimination arising from disability’, the Respondent had sought clarification of the ‘something arising’ from his disability. It appeared to me that the Claimant had identified this in the amendments which he had made to the Respondent’s list of issues (which was sent to him in June) as his ‘difficulties in dealing with unclear responsibilities in all potential scenarios of trust and mischief’. It is not a very clear formulation, and it would assist the Claimant’s case if he could clarify this.”

“Did the following thing(s) arise in consequence of the Claimant’s disability: i. The Claimant’s difficulty to deal with unclear responsibilities and all potential scenarios of trust and mischief. [Claimant to particularise]” i. The Claimant’s difficulty to deal with unclear responsibilities and all potential scenarios of trust and mischief. [Claimant to particularise]”

“Did the following thing(s) arise in consequence of the Claimant’s disability: i. The Claimant’s difficulty to deal with unclear responsibilities and all potential scenarios of trust and mischief. The Claimant asserts that his disability makes it difficult to think in multiple layers, deal with unclear responsibilities and uncertainty of his allocated roles. The uncertainty is compounded when misrepresentation takes place.” i. The Claimant’s difficulty to deal with unclear responsibilities and all potential scenarios of trust and mischief. The Claimant asserts that his disability makes it difficult to think in multiple layers, deal with unclear responsibilities and uncertainty of his allocated roles. The uncertainty is compounded when misrepresentation takes place.”

“Paragraph 6(a)(i) of EJ Spencer’s list of issues has been clarified by the claimant as follows: “The claimant asserts that his disability makes it difficult to think in multiple layers, deal with unclear responsibilities and uncertainty of his allocated roles. The uncertainty is compounded when misrepresentation takes place.”

“At the start of the hearing before us, there were some brief exchanges about the list of issues (in particular, Mr John tentatively suggested that it might have wrongly omitted a complaint of failure to make reasonable adjustments), but in the end no ruling was required of us as, having taken his client’s instructions, he unequivocally confirmed his agreement that it fairly identified the matters for determination. For convenience, a copy of the document (hereafter, ‘the LoI’) is appended to these Reasons. It can be seen that large parts of it are struck through. This reflects the fact that, at an early stage of the hearing and again after the evidence had been completed, the Claimant withdrew various elements of his pleaded case. As will be explained in due course, that left only one point of controversy about the shape and scope of the case, namely a disagreement which arose in closing submissions about the proper interpretation to be given to the ‘something arising’ element of the discrimination arising from disability claim.”

“103. In relation to the Claimant’s complaint that Mrs Marks failed to contact him during the first six months of his sickness absence, we record the following findings. He returned his work mobile phone shortly after his sick leave began. Mrs Marks tried to reach him on his personal mobile phone but he did not answer her calls. He told her not to contact him on his personal email account, but she did have frequent contact with him via his work email address, much of which was concerned with the second grievance and the question of a GIP claim. Mrs Marks’s emails were polite and supportive. On occasions she asked after the Claimant’s health and wished him a prompt recovery.”

“105. The Claimant complains that, in August and September 2019, Mrs Marks and Mr Worrall mishandled the GIP claim made on his behalf. A claim was submitted to Zürich on 30 August 2019. The ‘fit notes’ were sent in support. The Respondent had no other evidence to supply. The Claimant provided it with no medical evidence at the time or at any material point thereafter. In fact, despite repeated requests, he did not disclose his medical evidence to the Respondent until 21 April 2021, and then only pursuant to an unless order of the Tribunal. 106. Following a call with the Claimant on 27 September 2019, Zürich rejected the GIP claim on the basis that ‘work-related stress’ was not covered under the policy. In a separate communication a representative of Zürich informed Mrs Marks that the Claimant had been ‘quite guarded’ during the call but had confirmed that his absence from work was ‘work-related’. In an email to Mrs Marks of 30 September 2019, the Claimant confirmed that he had told Zürich that his medical issues resulted from workplace stress. 107. Mrs Marks asked Zürich to provide a formal response to the claim, which followed on 3 October 2019. In summary, this document stated that the Claimant’s absence from work was ‘situational’ rather than reflecting an inability to perform the work for which he was employed and that he could perform such work for another employer.”

“121. As we have mentioned, Mr Worrall suggested to the Claimant on 8 October 2019 that an OH referral should be made. At that point, Zürich had rejected the GIP claim and the Claimant’s right to company sick pay was about to run out. The Claimant did not respond to the suggestion. 122. On 21 October 2019 Mrs Leen took up the subject of OH, proposing that an appointment be made. 123. On 25 October and 11 November 2019 Mr Cruise repeated to the Claimant that the proposal remained live and explained why an OH referral was likely to be beneficial for all concerned. 124. On 4 December 2019 Mrs Leen proposed an OH review with a consultant OH practitioner, Dr Ryan, on 11 December 2019... 125. On 13 and 18 December 2019 Mrs Leen wrote again to the Claimant explaining that there was nothing unusual or unreasonable about the request for an OH review and that he had no reason to be mistrustful of an entirely standard process. 126. The Claimant did not engage and the proposed OH assessment by Dr Ryan did not happen. 127. In a further attempt to move matters forward, Mrs Leen proposed that the Claimant be permitted to select three independent OH practitioners from whom the Respondent could choose one, alternatively that the Respondent select three practitioners from whom the Claimant could choose one. The Claimant was not willing to take up this suggestion, apparently on the ground that a doctor chosen in this fashion might not be impartial. 128. On 30 December 2019 Mrs Leen proposed a third-party review through Zürich. The Claimant rejected the idea. 129. On 6 January 2020 Mrs Leen mooted the appointment of two OH doctors in sequence, one appointed and paid for by the Claimant and one by the Respondent. Again, the suggestion was dismissed by the Claimant. 130. On 10 January 2020 Mrs Leen proposed the simultaneous appointment of two OH practitioners, one by the Claimant and one by the Respondent, with a view to there being two assessments on the same day. Again, the Claimant dismissed what was proposed. 131. Mrs Leen was still not defeated. On 17 January 2020 she wrote to the Claimant proposing that an OH practitioner be selected by HCA Healthcare, an organisation of occupational health providers. She also repeated her request for the Claimant’s medical notes and records. Again, the Claimant rejected the proposal relating to the OH referral, declaring that all the Respondent’s requests were ‘unacceptable’ and that it had ‘all the information from [my] GP including the ‘sick notes’ …’ In fact, as he well knew, the ‘fit notes’ constituted the only GP material held by the Respondent. 132. On 21 January 2020 Mrs Leen wrote again to the Claimant stating that, regrettably, the parties had reached an impasse. She asked him, if he changed his mind, to provide whatever medical information he might have and in particular the material which he had already given to Zürich, pointing out (again) that the only medical evidence in the Respondent’s possession was the set of fit notes and that it was ‘incredibly difficult’ for it to decide how to proceed. Again, the Claimant refused to engage on the subject of the OH referral or in relation to disclosure of medical or evidence. 133. Mrs Leen sought the Claimant’s engagement on both topics in September and October 2020, again without success. 134. Following her return from maternity leave, Mrs Marks did likewise in her email of 24 November 2020, reminding the Claimant that the Respondent held no medical evidence other than the ‘fit notes.’”

“As it stands, we have no independent medical information on your current conditions or prognosis (in fact we are not even fully aware of what those conditions are, save that you have told us that one of them is FND), what adjustments (if any) we can take to facilitate your return to work nor when you are likely to be fit to resume your duties. We had hoped we could work with you to find out the answers to these questions so that we could then make an informed decision on your future employment with Nikko. However, you made it clear in your most recent letter that you are unwilling to co-operate with what we consider to be a reasonable process. As you have now been absent for almost 21 months and there is no evidence that you will be able to return to work in the near future, I have taken the difficult decision to terminate your employment on the ground of ill-health capability. In reaching this decision, I have taken into account that your entitlement to company sick pay has expired and that our claim to Zürich on your behalf for income protection cover was unsuccessful.

“141. By the time of the dismissal, the Claimant’s extended period of absence had had a serious impact upon the Respondent’s business. It had placed a considerable strain upon Mr Yik, who had been required to perform the functions of two roles more or less single-handedly. It had also delayed the growth plans which had been the very rationale for the creation of the Head of Product post and the attendant structural changes.”

“The case so advanced seems, on its face, unpromising - certainly where one reads the most significant instance of ‘unfavourable’ treatment (dismissal) alongside this formulation of the ‘something arising’. But its general meaning is clear. It conveys a complaint of a series of allegations of unfavourable treatment all of which are said to have been applied to the Claimant because of his difficulty with complex reasoning and managing uncertainty about his responsibilities and roles.”

“That attempted formulation, whilst not incorrect, was made by [the Claimant] when a litigant in person and when under an acknowledged mental disability. The tribunal is invited to take a fair and sensible approach to the full extent of the ‘things arising’ from the disability which led to the unfavourable treatment of dismissal. It is submitted that the actual features of [the Claimant’s] condition are quite plainly the ‘something arising’ causing his inability to work.”

“The LoI had been constructed by the Tribunal on the basis of the ‘pleadings’ and representations of both parties in the course of an inordinately lengthy case management process. The Claimant’s attempt to vary it had been refused by the Tribunal and that refusal had been upheld by the EAT. And at the start of the trial before us, through his counsel, he had abandoned any residual ambitions to widen, or alter in any way, the scope of the case as defined in the LoI. It would be unjust and contrary to principle to allow him in closing argument to advance a new case.”

“The Tribunal has performed its proper function of defining the dispute in the light of the formal documents and the contributions from both sides. It was not its function to advise the Claimant as to how to put his case. The ‘something arising’ ultimately settled upon and adopted by the Tribunal was not logically incoherent or obviously unsustainable. It would have been open to the Claimant to rely on more than one ‘something arising’ but he did not elect to do so. He is a conspicuously articulate and intelligent individual and the statutory language is not complicated. Moreover, long before instructing Mr John, he had had the benefit of legal advice, certainly when his appeals were pending in the EAT. He appears to have raised no complaint before the EAT about the formulation of the ‘something arising’ in the LoI, and if we are wrong about that any complaint on the matter found no favour with Michael Ford KC. At the start of the hearing before us the only doubt about the LoI mooted on behalf of the Claimant was as to whether it was defective in not including a complaint of failure to make reasonable adjustments. But, as we have noted above, on instructions Mr John abandoned any such submission. The hearing then proceeded on the basis of common ground that the LoI properly defined all claims and issues for decision. By that point, at the very latest, the Tribunal was entitled to treat the scope of the case as settled and firmly decline any further attempt to reopen the question. In our judgment, it would be unjust to the Respondent and contrary to the interests of justice and the overriding objective (which have at their heart the need to ensure finality and proportionality in all stages of litigation) to entertain Mr John’s submission. For these reasons, we refuse it.”

“204. On the strength of our primary findings above, we are satisfied that no unfavourable treatment is established. We consider that the Respondent’s approach was entirely reasonable and that, unfortunately, the Claimant’s was anything but. 205. The Claimant did not at any time dispute the appropriateness of obtaining an OH assessment. The difficulty throughout resulted from his insistence on dictating terms under which such an assessment might be arranged with which the Respondent could not reasonably have been expected to agree...[The ET then referred to its earlier findings as to the claimant’s position at the capability meeting on 11 December 2020.]...The central purpose of an OH assessment is to secure independent medical evidence to assist an employer to discharge its functions and obligations appropriately in light of an employee’s medical condition and its consequences. No employer could reasonably be asked for a referral to be conducted on its behalf by a practitioner over whose selection it had no control and with whom it was prohibited from communicating. The Claimant supplied no justification for the bizarre procedure upon which he was insisting. Nor could he.”

“212. ...There is no basis for supposing that Mrs Marks rested her decision to dismiss on her perception of the Claimant’s cognitive functions and/or any uncertainty he might feel about his functions and responsibilities. She did not have any reason to doubt his cognitive capacity or to wonder whether he was clear about his functions and responsibilities. Moreover, she had no reason to turn her mind to these questions. They did not arise. She dismissed the Claimant on capability grounds. The main factors on which her decision was based were that he had been away from work for an extended period; there was no apparent prospect of that period coming to an end; his long-term absence had prejudiced the Respondent’s business and threatened, if continued, to cause it further prejudice; and the Respondent had not been provided with any evidential basis on which to consider any alternative to dismissing him on capability grounds.”

“217. ...(1) At the time of the decision to dismiss, the Claimant had been absent from work for a very long time – almost 21 months. (2) His contractual right to sick pay had long since expired. (3) The GIP application, appeal and complaint had been fully considered and determined, as had the related (second) internal grievance and appeal and the two-stage FOS complaint. (4) Neither at the time of the capability hearings, nor in the proceedings before the Tribunal, was it any part of the Claimant’s case to argue that his dismissal would be, or was, unlawful as being in breach of his contract (for example by virtue of contravening an implied term of the sort recognised in Aspden v Webbs Poultry and Meat Group (Holdings) Ltd [1996] IRLR 521 HC). (5) Despite numerous requests to do so, the Claimant had refused to provide any medical evidence to the Respondent or to answer questions concerning his medical condition. (6) Despite the sustained efforts of Mrs Marks and Mrs Leen, the Claimant had unreasonably refused to engage with their proposals aimed at agreeing arrangements for an OH referral, with the result that the Respondent was denied the opportunity of an independent assessment of his condition and how any return to work might be achieved.(7) There was no realistic possibility of the Claimant returning to his role save, perhaps, on terms, to which the Respondent could not possibly agree, involving reversing the structural changes of March 2019 and restoring his status and reporting lines as they had stood immediately prior to that date. Self-evidently, he had no right to dictate terms to his employer and there was no question of the senior management entertaining what he proposed. (8) Absent medical evidence or any OH input, it was not practicable to inquire whether any alternative role might be suitable for the Claimant. (9) The Claimant’s absence had caused prejudice to the Respondent’s business and would inevitably cause increasing prejudice the longer it continued. (10) The Claimant was made aware that the capability process might lead to dismissal. (11) The Claimant made no practical contribution at the first capability meeting. (12) The Claimant declined to attend the second capability hearing.”

“219. Although the argument was attractively presented by Mr John, we are clear that it must be rejected, for numerous reasons. We start with proposition (a). As was common ground throughout, membership of the GIP scheme was a contractual benefit which it was open to the Claimant to invoke or not, as he chose. It would not have been proper for the Respondent (let alone its legal duty) unilaterally and without his authority to press Zürich with a fresh claim on his behalf... 220. Proposition (b), while, unlike (a), not obviously wrong in principle, is, in our view, clearly unsustainable given the relevant facts and circumstances. We have a number of grounds. (1) The Respondent had been aware since 20 November 2019...that the Claimant had, on 13 November 2019, supplied his medical records to Zürich (although he had declined to make any disclosure to the Respondent). (2) The Respondent had been given no reason to suspect that the disclosure, extending to a date many months after the start of the Claimant’s sick leave, might not fully and accurately document his medical condition. (3) The first claim form referred to the FND as having started in April 2019 and was not worded in such a way as to suggest that the diagnosis was recent at the date of issue of the claim form (17 May 2020). Rather, the wording suggested that the diagnosis had followed shortly after the onset of the condition. (4) The Claimant’s behaviour after 17 May 2020 had not been consistent with the diagnosis having been recent on that date. If it had been recent, it would have been natural for him to draw attention to it at the time, as relevant to the Respondent’s management of his ill-health absence generally and/or to Zürich’s treatment of the GIP claim and. He did not do so. (5) Nor did he, at any time up to his dismissal, say or suggest to the Respondent that Zürich had been, or might have been, unaware of his FND. (6) In the circumstances, the natural inference from the Respondent’s perspective was that Zürich had been in possession of the medical evidence, including that relating to the FND, by 13 November 2019. (7) On 16 November 2020, before the commencement of the capability procedure, the Respondent had been made aware of the FOS adjudicator’s decision rejecting the Claimant’s complaint. There was no reason for Mrs Marks to doubt that the Claimant had put before the adjudicator any evidence which might help his complaint. That evidence could reasonably be assumed to include medical evidence (if any) generated after the medical records were disclosed to Zürich on 13 November 2019. (8) In the course of the capability process, it was open to the Claimant at any time to raise the question of the diagnosis and its timing...and argue that they warranted revisiting the GIP claim, but he did not do so. On the contrary, at no point between the failure of the GIP appeal in November 2019 and the dismissal did he signal any departure from his line unequivocally stated in correspondence with Mrs Leen that the Zürich claim was closed and he would not contemplate pursuing it further. (9) As we have recorded, the Claimant had consistently and repeatedly (before and after 7 October 2020) refused to provide the Respondent with any medical evidence or to co-operate to enable it to commission evidence through an OH referral, and there was no realistic prospect at the time of the dismissal that his attitude on that matter would change. (10) In all the circumstances, throughout the period from her return to work (in mid-October 2020) up to the dismissal, Mrs Marks had no reason to consider pausing the capability process in order to initiate a further examination of the Claimant’s condition or its implications.”

“248. What was the reason or principal reason for dismissal? We are quite satisfied that it was the perception of Mrs Marks that the Claimant was not medically capable of performing his role and there was no practicable alternative to dismissing him on capability grounds. That was a reason relating to capability and, as such, a potentially fair reason to dismiss. 249. Did the Respondent act reasonably or unreasonably in treating the reason as a sufficient reason to dismiss? Given that we have found that, had the question arisen, the Respondent would have made out a good defence under the 2010 Act, s15(2), it seems to follow almost inevitably that, with no burden either way, it must succeed in resisting the unfair dismissal claim. In any event, for the reasons given above in respect of the claim under s15, we find that the decision to dismiss, taken by Mrs Marks at the end of a fair process, was reasonable and fell very comfortably within the range of permissible options open to her in the circumstances.”

“(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably be expected to know, that B had the disability.”

“31. In the course of submissions I was referred by counsel to a number of authorities including IPC Media Ltd v Mil-lar [2013] IRLR 707, Basildon & Thurrock NHS Foun-dation Trust v Weerasinghe UKEAT/0397/14/RN, [2015] All ER (D) 397 (Jul) and Hall v Chief Constable of West Yorkshire Police [2015] IRLR 893, as indicating the proper approach to determining s.15 claims. There was substantial common ground between the parties. From these authorities, the proper approach can be summarised as follows: (a) A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. (b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport [1999] IRLR 572. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises... (d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is ‘something arising in consequence of B’s disability’. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. (e) ...However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact. (f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (g) Miss Jeram argued that ‘a subjective approach infects the whole of section 15’ by virtue of the requirement of knowledge in s.15(2) so that there must be, as she put it, ‘discriminatory motivation’ and the alleged discriminator must know that the ‘something’ that causes the treatment arises in consequence of disability. She relied on paragraphs 26–34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her submission, and indeed paragraph 34 highlights the difference between the two stages – the ‘because of’ stage involving A’s explanation for the treatment (and conscious or unconscious reasons for it) and the ‘something arising in consequence’ stage involving consideration of whether (as a matter of fact rather than belief) the ‘something’ was a consequence of the disability...” (a) A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. (b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A’s motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport [1999] IRLR 572. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises... (d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is ‘something arising in consequence of B’s disability’. That expression ‘arising in consequence of’ could describe a range of causal links. Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability. (e) ...However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact. (f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. (g) Miss Jeram argued that ‘a subjective approach infects the whole of section 15’ by virtue of the requirement of knowledge in s.15(2) so that there must be, as she put it, ‘discriminatory motivation’ and the alleged discriminator must know that the ‘something’ that causes the treatment arises in consequence of disability. She relied on paragraphs 26–34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her submission, and indeed paragraph 34 highlights the difference between the two stages – the ‘because of’ stage involving A’s explanation for the treatment (and conscious or unconscious reasons for it) and the ‘something arising in consequence’ stage involving consideration of whether (as a matter of fact rather than belief) the ‘something’ was a consequence of the disability...”

“32. ...I accept that the word ‘necessary’ used in Bilka-Kaufaus [GmbH v Weber von Hartz] [1987] ICR 110 is to be qualified by the word “reasonably”

“119. Where an appeal is pursued on the ground of perversity, it is clear that there is a high hurdle to clear; as Mummery LJ held in Yeboah v Crofton [2002] EWCA Civ 794, [2002] IRLR 634 CA, there must be an ‘overwhelming case … that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached’. It is not open to the EAT to find perversity simply because it might have reached a different decision to that of the ET; even if it has ‘grave doubts’ it must proceed with ‘great care’ (Yeboah, para [93]). Furthermore, the ET’s role as the relevant fact finding tribunal is to be respected (see Associated Society of Locomotive Engineers and Firemen Brady [2006] IRLR 576 EAT, per Elias J at para 55), and its reasoning read as a whole (DPP Law Ltd v Greenberg [2021] EWCA Civ 672, [2021] IRLR 1016, per Popplewell LJ at para [57]). In Meek v City of Birmingham District Council [1987] IRLR 250, the Court of Appeal explained that an ET must provide a ‘sufficient account of the facts and of the reasoning’ to enable an appellate decision maker to ascertain whether any question of law arises (such reasons being ‘Meek-compliant’) but, consistent with Union of Construction Allied Trades and Technicians v Brain [1981] IRLR 224 (at 228), [1981] ICR 542 (at 551) CA this need not be a comprehensive or detailed analysis of all the facts and law but must ‘tell the parties in broad terms why they lose or, as the case may be, win’. 120. More generally, while a party may appeal on the basis that there was no evidence to support a particular finding (this would be an error of law, see Piggot Brothers & Co Ltd v Jackson [1991] IRLR 309 at para 17, [1992] ICR 85 at para 17), the EAT cannot interfere on the basis that there was insufficient evidence or that the ET gave inappropriate weight to particular evidence.”

“(a) Whether the applicant is in breach of the Rules or Practice Direction; in our opinion compliance with the requirement … that an application for permission to amend a notice of appeal be made as soon as the need for amendment is known, is of considerable importance. The requirement is not simply aspirational or an expression of hope. It does not set a target but is a requirement that must be met in order to advance the efficient and speedy dispatch and conduct of appeals. (b) Any extension of time is an indulgence and the appeal tribunal is entitled to a full honest and acceptable explanation… (c) The extent to which, if any, the proposed amendment if allowed would cause any delay. Clearly proposed amendments that raise a crisp point of law closely related to existing grounds of appeal, or offering limited particulars that flesh out existing grounds, are much more likely to be allowed than wholly new grounds of perversity raising issues of complex fact and requiring consideration of a volume of documents, including statements and notes of evidence… (d) Whether allowing the amendment will cause prejudice to the opposite party, and whether refusing the amendment will cause prejudice to the applicant by depriving him of fairly arguable grounds of appeal… (e) In some cases it may be necessary to consider the merits of the proposed amendments… (f) Regard must be had to the public interest in ensuring that business in the appeal tribunal is conducted expeditiously and that its resources are used efficiently.”

“33. First, proceedings in the ET are adversarial...In any given case the primary onus lies on the parties to identify...which claims they wish to bring and which answers they wish to advance. 34. Secondly, the issues raised by the parties are those which emerge clearly from an objective analysis of their statements of case. Identification of the issues does not involve reference to other documents which do not have the status of pleadings and come later. Nor should the process be a complex or difficult one. As Eady, P said in X v Y [2024] EAT 63 [49] “That pleadings matter, including in Employment Tribunals, is not a novel or controversial point”

“40. A list of issues is not a pleading but a case management tool. The main purpose of such a document is to summarise the existing pleadings not to amend them. On the other hand, as Mensah shows, a party may conduct itself in such a way as to lose the right to have the ET decide a pleaded issue, thereby reducing the scope of the tribunal’s corresponding duty. An agreed list of issues is one way in which that could in principle be done. Such a list is, after all, an express agreement that the tribunal should conduct the proceedings in a particular way, and an invitation to the tribunal to do so. A tribunal will usually be entitled to confine its attention to the issues on the list. By way of exception, however, it may be necessary in the interests of justice to depart from even an agreed list. There are at least two distinct categories of situation in which that may be so. The first is where a pleaded claim has been omitted from the list in circumstances that do not amount to abandonment of the claim. The second is where the claim has not been pleaded but the fundamental duty of fairness makes it necessary (that is to say, essential) that it should be raised and considered.”

“Q. ...C alleges FND. So justification for refusing claim no longer seemed valid. So not occur to you should you go back to Zürich view open new claim etc A. In a capability meeting – was attempted discussion – but C refused any info except for FND diagnosis Q. That was all about OH. Not about FND as [possible basis for] GIP A. GIP not [the] discussion. Launch pad would have been C sharing info Q. But GIP and OH very different things. Why not say to C: if not [pursue OH route] why not revert to GIP? A. Probably an oversight at that point. We were continuously trying to establish a dialogue. Zürich had...all med evidence ..... Q. In dismissal, had regard to the fact Zürich appeal (not) succeeded. You now had FND asserted. So had basis to argue... A. Accepted oversight. Continuing discussions. But was reluctance. Q. ...So basis for dismissing appeal no longer stood. A. potentially oversight. But also had tried over time to see how could create environment view RTW.”