The Court of Appeal held that in considering whether at the time of the alleged discrimination a subsequent recurrence of substantial effects from a disability was likely, the fact that a subsequent recurrence actually happened should be left out of account.
Court of Appeal, 2008. Full judgment: bailii.org.
DDA 1995, Schedule 1, paragraph 2 so far as relevant says: 2. (1)The effect of an impairment is a long-term effect if- (a) it has lasted at least 12 months; (b) the period for which it lasts is likely to be at least 12 months; or… (2) Where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. More on long term effect…
The Employment Tribunal had found the claimant was not disabled. Since a substantial disablement had not already lasted 12 months, the issue under the statutory rules (see yellow box) was whether it was likely to recur in future. The Employment Tribunal held that as at the time of the alleged discrimination (March/April 2005) it was not likely to recur. The Employment Appeal Tribunal overturned this, saying the Employment Tribunal should have taken into account the fact that her condition did in fact recur subsequently.
The train of events was as follows:
- Between November 2001 and February 2002 the claimant was compulsorily admitted to and detained in a hospital under Mental Health Act 1983.
- She applied for a job as a database assistant. On 30th March (or 1st April?) 2005 she was offered the job subject to references and health clearance.
- The offer was withdrawn on 22nd April on the ground that the Occupational Health Report had not cleared the claimant as fit for work. It was acknowledged that the withdrawal was a breach of contract, for which the claimant was entitled to damages limited to one months pay.
- In a letter dated 23rd May her consultant psychiatrist Dr Roberts said that the claimant that was fully able to return to work and the consultant had no concerns about her mental health relating to this. (The tribunal saw this letter as evidence that the consultant thought a recurrence was unlikely.).
- In August 2005 she had a relapse and in the December was again sectioned.
Held by the Court of Appeal: the subsequent relapse should not have been taken into account. The Employment Tribunal decision that the condition was unlikely to recur could stand. The Court of Appeal said:
“…Employers must not discriminate against employees who are disabled within the meaning of the Act. If they are to avoid the sanctions which may result from such discrimination, they must not discriminate against disabled people. They must first decide whether the employee is disabled within the meaning of the Act. They do that by applying a series of tests which, in an appropriate case, includes that in paragraph 2(2) of Schedule 1. That involves a prediction on the available evidence as would, in a different situation, a decision under paragraph 2(1)(b) or (c). Other decisions which employers are required to take to avoid falling foul of the Act, for example, the duty to make adjustments under Section 4A of the Act, do not arise for decision in the present case.
“The decision [by the employer], which may later form the basis for a complaint to an Employment Tribunal for unlawful discrimination, is inevitably taken on the basis of the evidence available at that time. In my judgment, it is on the basis of evidence as to circumstances prevailing at the time of that decision that the Employment Tribunal should make its judgment as to whether unlawful discrimination by the employer has been established. The central purpose of the Act is to prevent discriminatory decisions and to provide sanctions if such decisions are made. Whether an employer has committed such a wrong must, in my judgment, be judged on the basis of the evidence available at the time of the decision complained of…”
My comments
Requirement to get medical evidence
The Court of Appeal says the decision as to likelihood must be made “on the basis of evidence as to circumstances prevailing at the time of [the alleged discrimination]”, but also – as if it is the same thing – that it should be made on the basis of evidence available at the time. So what happens if an expert medical opinion (e.g. a speech and language therapist report) was not to hand at the time? Is what such an opinion would say discounted on the basis that it was not “evidence available at the time”, or is what that medical opinion would have said relevant because the key point is to look at evidence of the “circumstances prevailing at the time” – and what a medical expert would say about the likelihood of recurrence given those circumstances must be relevant?
I would think the latter. For the two formulations by the Court of Appeal to be consistent with each other, “evidence available at the time” needs to include an expert opinion which could have been obtained at the time. That also fits better with the wording of the legislation. Further, there was no criticism of the Employment Tribunal having taken into account a letter from the claimant’s consultant written after the alleged discrimination and (in the Tribunal’s view) supporting the view that a recurrence was unlikely. Accordingly, as suggested by a Personnel Today article about the case, an employer should not assume a condition is unlikely to recur unless it has sought medical advice on the point.
Unsatisfactory legislation
The decision leaves a somewhat bad taste in the mouth. It effectively says that (where effects have not lasted 12 months) if so far as one could tell at the time the effects were not likely to recur, then the employer can discriminate with impunity. So the less likely there is to be a problem in future, the less likely there is to be a successful DDA claim. This result is basically down to the current wording of the legislation though, not the Court of Appeal.
Other areas of DDA
The Court of Appeal made clear that its decision was only on Schedule 1 paragraph 2. Similar issues may arise elswhere in the DDA though, such as Schedule 1 para 6 regarding what effects an impairment would be likely to have were some treatment not being given.
The Court of Appeal specifically mentions the reasonable adjustment rules as something it was not considering in this case. They seem to me rather different in that they have a built in ‘lack of knowledge’ defence.
Stammering
For stammering, the decision is most likely to be relevant when considering whether the person has an ongoing (as opposed to just a past) disability, if the stammer is currently hardly having any effects (so they are not ‘substantial’ in normal day-to-day activities), and the question is whether they are likely to become substantial again for any periods in the future. I would expect it very often to be likely that the person will sometimes have episodes of more significant stammering in future – so that the substantial effects and thus the disability are seen as ongoing under DDA Sch 1 para 2(2).
