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Optinian's equipment: Simon Anderson defends disability discrimination claim

Attempted employment fraud by employment law academic: foiled

Following a hearing lasting 4 days in the Leeds Employment Tribunal, in a reserved judgment issued on 1 June 2015, Simon Anderson has successfully defended Huddersfield University against Equality Act 2010 claims made by a former senior employment law lecturer.

The disability discrimination claim

The claimant, Rubina Halim, had sought in excess of £650,000 in compensation for disability discrimination and reasonable adjustment claims. By a reserved judgment dated 19 August 2013, the tribunal adjudged that her complaints in part succeeded.

New evidence as to the disability

A year later, and following a successful appeal by the university on a jurisdictional point, evidence emerged to suggest that she had cynically mimicked her sister’s own disability. Her motive for doing so was to obtain reasonable adjustments to her contractual duties, and thereby be released from her obligation to perform marking. During the initial proceedings, the university had conceded the issue of disability. However, when the new evidence emerged, it sought to appeal the judgment of 19 August 2013. The tribunal instead decided that it should determine the claimant’s disability as a preliminary issue, as it had not previously considered the matter.

Claimant’s evidence as to disability

The claimant gave evidence about eyesight difficulties she started to experience from the beginning of 2008. Bright light, or doing a lot of reading, caused her headaches which often developed into migraines. This made it difficult for her to work on a computer for long periods of time. Marking was particularly difficult, causing her to lose balance and affecting depth perceptions. When her migraines were bad, she could not cook, clean or look after herself or her children. Her ability to drive, particularly at night, was affected. She was unable to read for pleasure. She developed coping strategies including sunglasses and/or a baseball cap. At various times, the claimant had difficulties in dealing with stressful situations and she was prescribed anti-depressant medication. On occasion, she lost motivation and desire to do anything. That affected concentration. Her ability to go out of the home was also affected.

The evidence of the medical specialists

The tribunal understood that the claimant had to show that she had “some damage, defect, disorder or disease compared with a person having a full set of physical and mental equipment in normal condition”. It reviewed the claimant’s medical and occupational health records, plus various reports. It also reviewed fit notes provided to the university. lt accepted the opinions of Mr Atkinson and Mr Backhouse, both consultant ophthalmic surgeons, and found that, at the material time, the claimant had a physical impairment: namely, right esotropia and amblyopia. ln lay terms, she had a squint and a lazy eye.

These conditions were clearly not the physical cause of the other symptoms on which she relied in support of her contention that she was disabled, and for which no organic cause could be identified by either consultant. Significantly, in his letter dated 9 February 2009, Mr Backhouse concluded that her symptoms were a manifestation of a ‘cry for help’.

Tribunal’s view of the evidence

The University of Huddersfield adduced psychiatric evidence from a Dr Wilkinson, who concluded that the claimant’s account of her visual difficulties were not symptoms caused by psychiatric disorders. This was accepted by the tribunal, which found that the claimant managed her condition by doing what she wanted to do – and not doing what she did not want to do.

For example, she was able to undertake and pass the Bar Vocational Course during her absence from work. It found that the claimant was manipulative, and had dramatised and ‘played to’ her condition. When she had personal problems, she consulted her GP (whom she viewed as a form of support – a ‘crutch’). As Mr Backhouse observed, this was a ‘cry for help’. The tribunal found that the claimant had exaggerated her symptoms and their effects. Accordingly, it dismissed her claim to have been disabled, and all claims arising from her disability necessarily failed. The university is now considering the recovery of its costs.

Simon Anderson

Simon Anderson (recommended for employment by The Legal 500) is highly regarded for his ability in claims relating to discrimination, victimisation, bullying and harassment. A complementary background in personal injury law also enables him to offer comprehensive practical and tactical advice in the specialist field of occupational stress.  Contact his clerks:

Francine Kirk on 0113 202 8605
Talia Webster on 0113 213 5207.