Appeal No. EAT/0648/02 TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 March 2003

Before
HIS HONOUR JUDGE PROPHET
MS S R CORBY
MR P A L PARKER CBE

PERTEMPS RECRUITMENT PARTNERSHIP LTD	APPELLANT

MRS ALISON ELLIOTT	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D BROOK
(of Counsel)
Instructed by:
Messrs Hall Reynolds Solicitors
18 High Street
Bidford on Avon
Alchester
Birmingham B50 4BU	
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT	

HIS HONOUR JUDGE PROPHET

1	This is an appeal by Pertemps Recruitment Partnership Ltd in respect of a decision by an Employment Tribunal sitting at Newcastle on 23 April 2002 under the Chairmanship of Mr J J L Hargrove.  The decision reads as follows:

“The unanimous decision of the Tribunal is as follows:
(1)	The Applicant is disabled applying the test in schedule 1 of the Disability Discrimination Act 1995.
(2)	The Applicant satisfied the test of disability at all material times between 28 December 2000 and the date of this preliminary hearing.”

2	Mr Brook of Counsel represents the Appellant today.  The Respondent to the appeal, that is to say the Applicant before the Employment Tribunal, has not been represented.

3	As a preliminary observation, bearing in mind the passage of time since Mrs Elliott submitted her complaint, it seems perhaps regrettable that the case went to a preliminary hearing at the Employment Tribunal solely on the issue of whether Mrs Elliott was disabled.  As the Employment Appeal Tribunal has emphasised on previous occasions, and recognising that there will be justifiable exceptions, it tends to be preferable for DDA cases to be dealt with by Employment Tribunals in their entirety at one hearing.

4	Mr Brook has helpfully indicated that the appeal is limited to the finding by the Employment Tribunal that Mrs Elliott was disabled prior to 28 February 2001.  He concedes that from 28 February 2001 and thereafter Mrs Elliott was disabled within the provisions of the DDA, in that she was suffering from reflex sympathetic dystrophy, i.e. RSD.

5	To understand his submissions it is necessary to set out briefly the circumstances which affected Mrs Elliott.  On 28 December 2000 she fractured her ankle and was consequently off work thereafter.  On 9 February 2001 she claims she attended the Pertemps office.  The Employment Tribunal found that she did not return to work at that stage.

6	On 12 February 2001 she had a further fall.  The Tribunal found that she returned to work on 6 March 2001.  She terminated her employment by letter of 14 April 2001.

7	On 11 April 2001 it was found by medical advisers that she might have RSD and this was confirmed on 16 May 2001.  The medical evidence, accepted by the Employment Tribunal, was that it was likely that the RSD symptoms developed between 28 February 2001 and 11 April 2001.

8	Before dealing with the immediate issue in this case, we have noted the observations of Mummery LJ in Clark v TDG Ltd t/a Novacold [1999] IRLR 318 at page 319 when he described the DDA as “an unusually complex piece of legislation which poses novel questions of interpretation.”  It is to one of those novel questions of interpretation that we have had to direct our minds in this appeal.

9	The reasoning of the Employment Tribunal on the issue of whether Mrs Elliott was disabled for the purposes of the DDA from a date earlier than 28 February 2001 is set out in paragraphs 9 (b) and (c) of the Extended Reasons as follows:

(b)	“The question then arose as to whether or not the Tribunal considered that the Applicant satisfied the test of disability from a date earlier than 28 February 2001.  The Tribunal first of all considered whether it could be said that immediately prior to 28 February the Applicant satisfied the relevant test of disability by reason of the serious fracture of the ankle; the subsequent operation and the second more minor accident.  Unfortunately the medical evidence was not such as to provide an answer to the question whether, if the symptoms of RSD had not occurred, the Applicant would by reason of the accidental injury have satisfied the test.  The reason of course is that the medical experts have not been asked to answer such a hypothetical question.  The Tribunal felt unable to assume without any such evidence that without the onset of RSD the Applicant’s condition would have satisfied the long-term test contained in schedule 1, paragraph 2 of the Act.  It might or it might not have.  In any event the Tribunal concluded that the Applicant had not established the proposition on the balance of probabilities.  In reaching this conclusion the Tribunal considered not merely the original injury but also the subsequent accident on 12 February which was causatively linked to the original injury.
(c)	The Tribunal next considered whether it was possible to define impairment as including all three elements, namely the original injury; the second accident on 12 February and the onset of RSD  It was clear from Mr Weir’s letters and in particular that of 19 April that the symptoms of RSD in his opinion did not develop until after 28 February 2001, but the Tribunal did not conclude that that confined the Tribunal to a finding that disability did not occur applying the statutory test until that time.  The opinion of Mr Weir at the conclusion of the correspondence as set out above is that it is more probable that the condition was caused by the initial injury incurred on 28 December rather than by the more minor accident which occurred on 12 February.  The Tribunal concluded from that that the symptoms of that condition only arose in an identifiable form after 28 February although the Tribunal has accepted the Applicant’s evidence that one of the defining features which aid diagnosis, namely a burning quality to the pain, was apparent to the Applicant long before 28 February.  The Tribunal accepted the Applicant’s evidence to this effect.  The Tribunal noted what was said about the condition in a leaflet about RSD contained at pages 46 to 49 of the bundle:
“We do know that certain factors can trigger the development of RSD.  For example, it may start after someone has suffered a fracture or some other injury although most people injured in this way recover without any complications.”
In other words the Tribunal concluded that in the period between 28 December and 28 February the Applicant had an impairment, albeit latent, which included at least the probability, albeit unknown to anyone at that time, that RSD symptoms would become apparent.  The effect of the impairment even at that stage clearly satisfied the test of substantiality so far as normal day to day activities were concerned, in the sense that the Applicant was only able to move with difficulty with crutches and satisfied the test of long-term effect because they were likely to arise and last at least 12 months or for the rest of the life of the Applicant.  Thus the Applicant succeeds in showing that she satisfied the test of disability not only for a long period commencing on or shortly after 28 February but also from 28 December 2000.”

10	Mrs Elliott had a disability if she had a physical or mental impairment which had a substantial and long term adverse effect on her ability to carry out normal day-to-day activities.  

11	The sole question we have to determine today is whether the Employment Tribunal reached a permissible conclusion that she was disabled within the meaning of the Act prior to 28 February 2001.  We are divided on that matter.

12	Our dissenting member, Ms Corby, maintains that the test is an objective one and that the definition of disability requires the Tribunal to look at the effect of the impairment, not the causes.  The impairment was continuous, albeit that the diagnoses changed.  Throughout all material times Mrs Elliott’s mobility was substantially limited and this has been shown to have a long-term effect.  Consequently, Ms Corby would dismiss the appeal.

13	The majority take the view that the impairment consequent upon Mrs Elliott sustaining her ankle injury on 28 December 2000 did not fall within the definition of disabled in the Act because it was not long-term.  It was only after 28 February 2001 that RSD brought her within the definition, it being accepted that impairment consequent upon RSD is long-term.  Consequently the majority find that the Employment Tribunal misdirected itself in law in finding disability prior to 28 February 2001.

14	The majority therefore uphold the appeal and substitute for the wording in the decision of the Employment Tribunal in part (2) of its decision:

(2)	“The Applicant satisfied the test of disability at all material times between 28 February 2001 and the date of this preliminary hearing.”