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Yes, it can, and this is what occurred in JP v Spelthorne Borough Council.
The claimant in this case was the subject of a restricted reporting order and cannot be named.
A preliminary hearing was listed to deal with the issue of whether the claimant was disabled for the purposes of the Equality Act 2010 (EqA).
On the facts, a first instance tribunal found that the claimant did not meet the EqA test for disability. Her disability discrimination claims, therefore, failed. The employment judge determined on the evidence that her impairments had not lasted 12 months or more as at the termination date, nor were they likely to recur, since they related to a work situation which was not likely to recur.
The claimant appealed the decision, relying on Cox v Adecco Group, which concerned a whistleblowing claim that was struck out without properly identifying the issues.
The EAT rejected her argument. A whistleblowing claim requires a multi-faceted evaluation before a tribunal can strike it out. In a disability discrimination claim, the question is much simpler: was the claimant disabled at the relevant time? Answering this question did not require a detailed evaluation of all the facts in the case. The test is to see whether the claimant meets the section 6 definition of disability. There is no hard-edged rule that a tribunal must identify claims before determining whether the claimant has the protected characteristic of disability.
In determining disability, the judge was entitled to rely on the analysis made of the pleadings (the statements of case – Claim and Response) and the claimant's Disability Impact Statement.
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