The Claimant brought claims against the Respondent of automatically unfair dismissal for whistleblowing, disability discrimination and breach of contract, and the ET decided that it would deal with the issue of disability first. The ET found that the Claimant, who was unrepresented, did not meet the definition of disability and, at her request, the hearing on the remaining issues was postponed. The Claimant appealed against the ET's finding, relying on new evidence in the form of a report from a clinical psychologist which confirmed that she had been diagnosed with autism spectrum disorder; and the appeal was permitted to proceed on the basis that it was arguable that the new evidence supported the Claimant's case that she was a disabled person at the relevant time.

The EAT held that new evidence satisfied the three limbs required by the Practice Direction (Employment Appeal Tribunal – Procedure) 2018; accordingly, the finding that the Claimant was not disabled would be set aside, and the matter would be remitted to the same ET for further evidence to be heard on the question of disability.