The Claimant had been in dispute with the Respondent for several years and had been off sick for a prolonged period. The Respondent referred the Claimant to its occupational health service and sessions of CBT (cognitive behavioural therapy) were provided to the Claimant. However, the Respondent refused to provide more sessions. The Claimant alleged in these proceedings that he was disabled by reason of IBS (irritable bowel syndrome) and a mental health impairment (anxiety/depression). At a preliminary hearing, the ET found that the Claimant had not established that as at the material time he was suffering from a mental health impairment. In the meantime, the ET proceedings continued with respect to the claim for disability discrimination based upon the (admitted) disability of IBS. Those claims were all dismissed. The Claimant appealed, in the words of the Respondent, by trying 'to revive the same allegations as have been dismissed by that decision (insofar as they relied upon the impairment of IBS) by restoring the ability to argue that R’s decision not to continue to fund CBT treatment was section 13 and/or section 15 disability discrimination due to mental impairment.'

The EAT dismissed the appeal. The appeal would be dismissed on the basis that since the rule 3(7) determination an issue estoppel had arisen between the parties because of findings made at the final hearing of the Claimant’s other causes of action. It was a necessary and fundamental element of the decision of the Tribunal at that final hearing that the Respondent took its decision to refuse to fund further counselling sessions for the Claimant for reasons wholly unrelated to any protected characteristic of the Claimant. It would not be open to the Claimant to re-litigate the ‘reason why’ issue based on a different disability which meant that the appeal was academic.