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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> All Answers Ltd v W & Anor [2021] EWCA Civ 606 (30 April 2021) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2021/606.html Cite as: [2021] IRLR 612, [2021] EWCA Civ 606 |
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
LORD SUMMERS
UKEAT/0023/20/AT(V)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE NEWEY
and
LORD JUSTICE LEWIS
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ALL ANSWERS LTD. |
Appellant |
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- and - |
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(1) MR W (2) MS R |
Respondents |
____________________
The respondents in person
Hearing date: 20 April 2021
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Crown Copyright ©
Lord Justice Lewis:
Introduction
The Legal Framework
"(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.
(2) A reference to a disabled person is a reference to a person who has a disability.
(3) In relation to the protected characteristic of disability—
(a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability;
(b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.
…..
(5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).
(6) Schedule 1 (disability: supplementary provisions) has effect".
"2 Long-term effects
(1) The effect of an impairment is long-term if—
(a) it has lasted for at least 12 months,
(b) it is likely to last for at least 12 months, or
(c) it is likely to last for the rest of the life of the person affected.
(2) If 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.
(3) For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed.
(4) Regulations may prescribe circumstances in which, despite sub-paragraph (1), an effect is to be treated as being, or as not being, long-term."
The Factual Background
The Decision of the Employment Tribunal.
"2. The purpose of the hearing … is to determine whether either or both of the claimants ….. are disabled within the meaning of Section 6 and Schedule 1 of the Equality Act 2010".
"8. The issue before me is therefore limited to determining whether either or both Claimants are disabled within the meaning of the 2010 Act and this decision is entirely limited to that issue. In particular, nothing in this decision should be taken to determine whether the Respondents know or could have reasonably been expected to know that either claimant was disabled. That issue is a matter for the full hearing."
"12. In terms of the symptoms' effects on day to day activities Mr [W's] evidence was that he no longer socialised with friends save for his contact with his co-claimant [Ms R] and that contact arose because of his wish to support her in relation to the difficulties that she was encountering at work. He gave up bike riding and he no longer cooked for himself and found it difficult to motivate and to attend to matters such as his own self-care and appearance and to duties on the domestic front."
"Conclusions
15 I am satisfied that Mr [W] has established that he suffers from a mental impairment and it is unnecessary for me to put a precise label on that condition. I am further satisfied that on the basis of Mr [W's] evidence and the medical records that impairment is long term.
16. Has the impairment had a substantial, ie more than minor trivial adverse effect on Mr [W's] ability to carry out day to day activities? I accept Mr [W's] evidence that it has, particularly in the sense that he has lost motivation and confidence, he has for many months been unfit for work, he ceases to have an active social life and physical life in the sense of exercise. There is also supporting contemporaneous evidence in the record of "chats" in the bundle. On balance, therefore, I am satisfied that Mr [W] has since April 2018 been disabled within the meaning of the 2010 Act and remains so."
"19. As to the effect on day activities Ms [R's] evidence was that she had ceased to take care with her personal appearance, sometimes not washing her hair for over a week. She had ceased to socialise with all but Mr [W] and that in the context of their joint claim. She had postponed her wedding but continued to be supported by her fiancé and her mother. She had given up dancing which she both enjoyed and had reached a high standard. She no longer goes out on her own, always being accompanied either by her fiancé or her mother".
"21. In conclusion I am satisfied both on her own evidence and that contained in the "chats" that Ms [R] suffers from a mental impairment and again it is unnecessary to put a label on that impairment. It is clearly long term and in my view has a substantial, ie more than minor or trivial, adverse effect on her day to day activities, in particular that she has lost confidence, she has effectively ceased to socialise outside the inner circle of her fiancé, her mother and Mr [W]. She has given up dancing and has ceased to take care of herself. On balance therefore, I am satisfied that Ms [R] is disabled within the meaning of the 2010 Act and that she has been so from April 2018 and remains so."
"Both Claimants are disabled within the meaning of Section 6 and Schedule 1 of the Equality Act 2010."
The Decision of the EAT
The Appeal to the Court of Appeal
The Grounds of Appeal and the Respondents' Notices
(1) failed to ask whether on 21 and 22 August 2018, the effect of Mr W's mental impairment was likely to last for 12 months or likely to recur; and
(2) erred in concluding that Mr W became disabled within the meaning of the 2010 Act at the moment he started to experience depressive symptoms in April 2018 or failed to give adequate reasons for that conclusion or that that conclusion was perverse.
(1) failed to ask whether on 21 and 22 August 2018, the effect of Ms R's mental impairment was likely to last for 12 months or was likely to recur and/or failed to give adequate reasons as to why it considered in April 2018 that the effects were likely to last long term (ground 2); and
(2) erred by taking into account matters that occurred after the 21 and 22 August 2018 (ground 3).
(1) the reasoning of the employment tribunal on the various issues was adequate (that is, it complied with the requirements set out in the judgment in Meek v City of Birmingham District Council [1987] IRLR 250 and English v Emery Reimbold & Strick Ltd. [2002] EWCA Civ 605, [2002] 1 WLR 2409) and the EAT did not have doubts as to the adequacy of the employment tribunal's reasoning;
(2) remitting the case to an employment tribunal would only lead to the same determinations being made and any failings in the judgment of the employment tribunal were not significant enough to be likely to lead to any material changes in the findings by the employment tribunal;
(3) at the time of the preliminary hearing to determine disability, there was further evidence, namely various Microsoft Teams chats, which existed but had not been disclosed to the claimants by the respondents. Those chats were disclosed after the preliminary hearing and would have provided further support for the submission that the claimants were disabled.
Submissions
Analysis and Decision
Lord Justice Newey
Lord Justice Lewison