When considering the question of disability discrimination, tribunals have to consider two issues – the fact of the impairment and whether it had a substantial adverse effect on the claimant’s day-to-day activities. In Khorochilova v Euro Rep Ltd, the Employment Appeal Tribunal (EAT) held that tribunals do not have to consider the two questions in any particular order.

Basic facts

Following her dismissal in February 2017, Ms Khorochilova brought claims for disability discrimination, among other things.

At a preliminary hearing in March 2018, to ascertain whether she was a disabled person at the time of her complaint, Ms Khorochilova identified her disability as mixed personality disorder. She claimed that this was based on an assessment in a report written in 2010 by a consultant psychiatrist, Dr Schuff. This, she said, caused her to be “somewhat obsessive” and “perfectionist” in her behaviour and how she did her work. She also relied on evidence from her GP although this did not specify that she was suffering from mixed personality disorder either.

Although she had also suffered with depression and anxiety as a result of her dismissal, she did not rely on those conditions in order to establish that she had an impairment at the material time.

Relevant law

Section 6 of the Equality Act 2010 states: “(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities...”

Tribunal decision

The tribunal, however, was not convinced that Ms Khorochilova had an impairment not least because Dr Schuff did not use the term “mixed personality disorder” in the report. Instead he described her as suffering with “problematic personality traits”.  Her GP records merely recorded her own reference to mixed personality disorder.

The tribunal then went on to hold that, even though she had not tried to rely on her depression and anxiety, she had not, in any event, produced any evidence to show that they had an adverse effect on her day-to-day activities at the relevant time.

Ms Khorochilova appealed, arguing that in light of the judgment in J v DLA Piper, the tribunal should have started by making findings about the effect of the impairment on day-to-day activities before considering the question of impairment in light of those findings under section 6. Instead, because it had considered whether the mixed personality disorder amounted to an impairment first, it then limited its assessment as to whether that condition had a substantial adverse effect on her day-to-day activities. This, she claimed, was an error.

EAT decision 

Rejecting the appeal, the EAT held that although case law states that tribunals should not adopt a rigid sequential approach when determining if someone has a disability as defined under section 6, it was not an error of law for the tribunal to first try to identify whether or not Ms Khorochilova had an impairment.

Noting that neither Dr Schuff nor his colleagues had given a diagnosis of personality disorder, the tribunal was therefore correct to conclude that the specific impairment relied on by Ms Khorochilova was not backed up by the evidence.

The tribunal had also gone on to consider (correctly) if there was evidence of another impairment that had the requisite adverse effect to substantiate her claim of disability. It had expressly considered whether Ms Khorochilova was suffering from any condition that had an adverse effect on her ability to carry out normal day-to-day activities.

The tribunal was therefore correct to conclude that there was insufficient evidence to find that Ms Khorochilova was suffering from “any condition that was having an adverse effect on her day-to-day activities” at the time that she made her claim.


This case shows that it is important to have specific evidence as to how a person’s ability to carry out normal day-to-day activities is adversely affected. General assertions such as “difficulty adapting to a change in routine” or “becoming confused occasionally” without providing specific examples is unlikely to be enough to establish disability under section 6 of the Equality Act 2010.