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Cunningham v Ballylaw Foods Ltd

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Last updated 18th August 2007.

The Court of Appeal in Northern Ireland said that the substantiality of an impairment is influenced by the time it is likely to last – so an impairment is more likely to have a ‘substantial’ effect if it is long term. This could help in arguing that a stammer has a substantial effect.

Northern Ireland Court of Appeal, [2007] NICA 7. Full judgment: bailii.org.


The claimant had a job involving the cleaning and preparation of vegetables for sale to supermarkets. The nature of the job required her to remain on her feet all day and to undertake continual heavy lifting. She fell at work on 12th December, and pain in hef lower back began about four weeks later. On 25 January she suffered an episode of acute back pain requiring out of hours treatment at a local health clinic. She was advised that she needed to rest her back, which prevented her returning to work. On 27 January she reported sick. When the claimant reported to the employer the following week on 3 February with a doctor’s sick note, she was dismissed with one week’s notice, on the basis she would be off sick for a good while and would be unable to lift “heavy stuff”. More than a year later she was diagnosed as suffering from a prolapsed disc. The tribunal found she had probably been suffering from this when she was dismissed.

The Industrial Tribunal found that the claimant was not suffering from an impairment which had a substantial effect on normal day-to-day activities. In the brief period between 25 January and 3 February the claimant was on her doctor’s orders, at home resting as the most effective form of pain relief, and the Tribunal did not consider that in such a brief period resting, the claimant could have experienced the relevant range of constraints or substantial adverse effects on her ability to carry out a range of normal day to day activities. Also it could not be said, as at that time, that the impairment was more likely than not to last for 12 months. Accordingly she did not have a disability within the DDA.

Held by Court of Appeal (NI):

Were the effects of the impairment ‘substantial’?

The Court of Appeal said that the sequence of questions proposed in Goodwin highlighted the requirement for a claimant to show both a substantial and a long term impact from the impairment:

“The splitting of the issues into two separate and self contained questions whether a person has an impairment which is substantial and whether she has an impairment which is long term may, however, be too analytical and divert attention from the fact that the substantiality of an impairment is itself influenced by the length of time the impairment is likely to last. For example, a person who has suffered straightforward fractured bones will often be for the duration of the healing process substantially disabled on one view. The fact that the bones are likely to heal up satisfactorily within a relatively short period would lead to a conclusion that he has not suffered a substantial impairment. By the same token if a person has suffered a serious injury which is likely to have a long term impact and is dismissed very shortly after the injury is sustained the brevity of the duration of the time he has been disabled before being dismissed cannot detract from the substantiality of the impairment. In approaching the question whether a person qualifies as a person with a disability for the purposes of section 1 a tribunal must not overlook that the questions of substantial adverse effect and long term adverse effect overlap and ultimately the tribunal must take a view as to whether the overall statutory definition is satisfied on the evidence.” (Bold type inserted by me)

The Industrial Tribunal here had not accepted that during the period between 25 January and the date of the dismissal the applicant was adversely affected in her ability to carry out normal day to day activities.

“During that period she was potentially substantially adversely affected by a physical impairment depending on the medical prognosis. If the prognosis was good and the back was likely to resolve over a relatively short period of time then the appellant may not have had a substantial impairment. She would in any event not have had a condition that could be shown to be likely to have a long term effect. If on the other hand the prognosis was pessimistic with a likelihood of ongoing adverse effect over a protracted period then the condition would have a substantial adverse affect and if the prognosis pointed to a likelihood of it lasting 12 months or more then statutory disability would be established.”

Was the impairment ‘long term’?

The Tribunal held not, and the Court of Appeal effectively agreed. The Tribunal had correctly followed the Latchman case. It was for the claimant to establish by appropriate medical evidence that as at 3 February 2003 she was suffering from an impairment which on a balance of probabilities was likely to produce adverse effects for 12 months or more. In the context of a back injury of this nature the Tribunal was correct and wise to state that it could not speculate on the prognosis as at 3 February 2003. It could only act on the basis of appropriate expert evidence.

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