The claimant was employed by the respondent for just over a year from April 2018 to July 2019. She made claims of disability discrimination over issues relating to an ongoing shoulder injury and a hearing was held to determine whether she was a disabled person, though it was agreed she did have a shoulder injury. The judge found she was not disabled as broadly the claimant was improving after having had surgery and so the disability was unlikely to last 12 months.

In this appeal, allowed after a rule 3(10) hearing, HHJ Auerbach reviews the evidence and allows the appeal on two out of five grounds: that the judge's statement attaching little weight to a letter from a doctor about recovery was perverse and that she had misapplied the relevant guidance on disability. He then remitted the matter for a fresh tribunal as the EAT was in no position to make a finding as it had not heard all the evidence.