Appeal No. UKEAT/0197/06/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 May 2006

Before
HIS HONOUR JUDGE J R REID QC
(SITTING ALONE)

EUROPEAN WELLCARE LIFESTYLES LTD	APPELLANT

MR C CROSSINGHAM	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MICHAEL HUMPHREYS
(Of Counsel)
Instructed by:
Messrs Knowles
Solicitors
The Observatory
1 Old Haymarket
Liverpool
L1 6EN

For the Respondent	MR NEIL DOWNEY
(Of Counsel)
Instructed by:
Messrs Pannone & Partners
Solicitors
123 Deansgate
Manchester
M3 2BU	

SUMMARY

Respondent was employed by Applicant but went off sick with recurrent depressive disorder.  He returned to work but later went off sick again.  ET held he was disabled throughout because the substantial adverse effect of his illness was likely to recur.  Held: ET entitled so to hold.  It was entitled to look at the fact of recurrence in determining its likelihood but had not held the likelihood existed simply because there was a recurrence.

HIS HOUNOUR JUDGE REID QC

1.	This is an Appeal from a decision of an Employment Tribunal held at Liverpool on 28 November 2005.  It was a hearing before a Chairman alone, Miss H J Slater, and her decision on a preliminary point was that the Claimant was disabled within the meaning of the Disability Discrimination Act 1995 in the period August 2004 to March 2005 during which period the Claimant alleged that the Respondent failed to comply with a duty to make reasonable adjustments.  As a result of that decision the Chairman gave directions for the matter to proceed to a Full Hearing on the remaining issues.

2.	The case had originally been presented on behalf of the Claimant on the basis that throughout that period he was disabled within the meaning of the Act but as the case proceeded and it appeared that the Chairman was not much taken with the submission that he was in fact disabled throughout that period.  The Claimant shifted his grounds somewhat and argued that he had had an impairment which had a substantial adverse effect on his ability to carry out normal day-to-day activities, and that during some part of that period although the impairment had ceased to have an effect it was to be treated as continuing by virtue of Schedule 1 paragraph 2(2) of the Act because the effect was likely to recur.

3.	The Chairman held that he was in fact disabled between February 2004 and July 2004 and again from February 2005 onwards and she held that he was to be treated as disabled during that intervening period because the substantial adverse effect was likely to recur.  The relevant paragraphs of her judgment are at paragraphs 26 and 27 which it will be sensible for me to read in full:

“26.   Applying the law to the facts found in this case, I reach the following conclusions.  The claimant, as was accepted by the respondent, had a mental impairment resulting from or consisting of a clinically well-recognised mental illness i.e. Recurrent Depressing Disorder F33.0, ICD-10.  This impairment had at some times a substantial adverse effect on the claimant’s ability to carry out the normal day-to-day activities of mobility (since the impairment caused withdrawal – being unable to face people or leave the house) and memory or ability to concentrate, learn or understand.  I conclude, in accordance with my findings of fact that the symptoms and effects of the condition were most severe from February 2004 until about July 2004, and then again from February 2005 onwards, that the impairment had a substantial adverse effect on the claimant’s ability to carry out these normal day-to-day activities, in the sense of the effect being more than minor or trivial, during these periods.  In the period August 2004 to February 2005, in accordance with my finding of fact that symptoms and effects of the condition were mild.  I conclude that the impairment did not have a substantial adverse effect on the claimant’s ability to carry out these normal day-to-day activities.
27.   As at August 2004, the impairment had not lasted at least 12 months.  However, the claimant will satisfy the definition of disability if, at the time of the alleged discrimination, the period for which the substantial adverse effect of the impairment was likely to last was at least 12 months.  Paragraph 2(2) of Schedule 1 of the Act states that where an impairment ceases to have a substantial adverse effect on a person’s disability 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.  The substantial adverse effect of the impairment recurred in February 2005.  Paragraph B8 of the Guidance and Greenwood (that is a reference in the case of Greenwood v British Airways reported in 1999 ICR at page 969) require that regard be had not only to how the situation appeared at the date of the alleged discrimination but also to what happened subsequently in assessing whether the substantial adverse effect of the impairment was likely to recur.  I conclude that, since the substantial adverse effect of the impairment did, in fact, recur in February 2005, as at August 2004, until its recurrence in February 2005 the effect of the condition was likely to recur.  The likelihood of recurrence is supported by Dr Mbaya’s diagnosis of Recurrent Depressive Disorder, the characteristics of which include repeated episodes with symptom free periods in between episodes.  Since the substantial adverse effect of the impairment was likely to recur, in accordance with Schedule 1 paragraph 2(2) the impairment is to be treated as continuing to have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities throughout the period when the effect was less severe.  By August 2004, the period of the actual substantial adverse effect of the impairment was approximately 7 months.  The total period for which the effect was likely to last, including the period in which the substantial effect was deemed to continue, was likely to be at least 12 months.  The total period, as at the date of the tribunal hearing, was in fact, substantially longer than this.  The claimant, therefore, met the definition of disability in the period from August 2004 until the presentation of the tribunal claim on 11 March 2005, the period within which disability discrimination is alleged to have occurred.”

4.	The issue that arises on this appeal is whether or not the Tribunal approached the question of whether the impairment was likely to recur as at July 2004 correctly.  The material passages in the law I can take very largely from the Appellant’s skeleton argument.  Schedule 1 paragraph 2(1) of the Act provides the effect of the impairment is long term if:

“(a) it has lasted at least 12 months; or 
  (b) the period for which it last is likely to be at least 12 months; or 
  (c) it is likely to last for the rest of the life of the person affected”

Sub paragraph 2 provides:
“Where an impairment ceases to have a substantial adverse effect on the person’s ability to carry out normal day-to-day activities, is to be treated as continuing to have that effect, if that effect is likely to occur.” 

5.	In the guidance provided under the Act at paragraph B3 it is said:

“The Act states that if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur,”

B4 provides amongst other things:

“For example, a person with rheumatoid arthritis may experience effects from the first occurrence for a few weeks and then have a period for remission.  But if the effects are likely to recur, they are to be treated as if they were continuing.”

B7 deals with the question of likelihood:

“It is likely that an event will happen if it is more probable than not that it will happen.”

And B8 provides:

“In assessing the likelihood of an effect lasting for any period, account should be taken of the total period for which the effect exists.  This includes any time before the point when the discriminatory behaviour occurred as well as time afterwards.  Account should also be taken of both the typical length of such an effect on the individual and any relevant factor specific to this individual (for example, general state of health, age)”.

6.	There have been three relevant authorities which were cited to me.  Of those only Greenwood was cited to the Tribunal.  The reason for that is pretty clearly that it is the only one which had anything in it which was relevant to the case presented by the Claimant at the start of the hearing.  The other two Latchman and Swift were not before the Chairman because neither Counsel had anticipated the way in which the Claimant’s case was going to develop.  I shall take the material parts of those cases in chronological order.  First of all in Greenwood at the conclusion on page 977 the Employment Appeal Tribunal chaired by Judge Clark said this:

“In our judgment the tribunal fell into error by considering the question of disability only as at the date of the alleged discriminatory act.  We are quite satisfied, as the Guidance makes clear, that the tribunal should consider the adverse effects of the applicant’s condition up to and including the industrial tribunal hearing.  By disregarding its findings of fact as to the actual recurrence of the adverse effects of the applicant’s condition which led him to go off work by reason of depression on 16 August 1997 and to continue off work until the date of the tribunal hearing the tribunal hearing the tribunal’s approach was fatally flawed.
Even if we accept Mr Nicholls’s submission that at paragraph (33) of the reasons the tribunal meant that the applicant had had a disability, but no longer had a disability as at June 1997, the failure to take into account the fact that the adverse effect did recur and became worse thereafter leads to the conclusion that on the facts as found by the tribunal the applicant made out his case on section 2 disability.”

7.	In Latchman v Reed Business Information Ltd [2002] ICR 1453 a Tribunal chaired by Lindsay J, then President, said this at paragraph 17:

“17     It is always tempting to a court, and is often appropriate, when it is charged with finding out what at some earlier date the future would then have seemed to hold, to have regard to what the future in fact came to pass to be, as, by the date of the hearing, it will have sometimes come to be the case.  The so-called “Bwllfa principle” deals with such a position, as Lord Macnaghten put it, in relation to an arbitrator:

“Why should he listen to conjecture on a matter which has become an accomplished fact?  Why should he guess when he can calculate?  With the light before him, why should he shut his eyes and grope in the dark?”

See Bwllfa & Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1993] AC 426, 431.  But both the terms of Schedule 1, paragraph 2(1)(b), and the opening words of paragraph B8 of the Guidance emphasise that here what has to be examined is the existence or not of a likelihood.  The question is not whether the impairment in fact lasted at least 12 months (as would very often, given inescapable delays in arranging hearings, be capable of being easily seen by looking backwards from the date of the hearing) but whether the “period for which it lasts is likely to be at least 12 months”.  Although the latter part of the first sentence of paragraph B8 is unhelpful as guidance, it is not, in our view, intended to displace the otherwise proper construction of paragraph 2(1)(b), which the present tense “is likely” assists towards, namely that the likelihood falls to be judged as it currently was, or would have seemed to have been at the point when the discriminatory behaviour occurred.  The latter part of paragraph B8 (taking account of the typical length rather than the actual length of an effect as it has transpired to be) emphasises that it is not what has actually later occurred but what could earlier have been expected to occur which is to be judged.”

It is to be noted he is referring to paragraph 2(1)(b) rather than 2(2) but it seems to me that where the word “likely” is used twice in close proximity the Parliamentary Draftsman probably had the same meaning in mind.  At paragraph 18 the President continued:

“18     Mr Harris has sought to persuade us that Greenwood v British Airways plc [1999] ICR 969 is to the contrary, in particular at p 977E-F.  It is clear that in some respects that paragraph is not to the contrary, but to the extent that it is we must respectfully differ from it.”

8.	The third and most recent of the authorities (again a decision of the Employment Appeal Tribunal) is Swift v Chief Constable of Wiltshire Constabulary [2204] IRLR p540, a decision of the Tribunal chaired by Judge Richardson, and I can take the material parts of that decision from the head note.  The head note reads, so far as material:

“In considering the application of para. 2(2), a tribunal should ask itself the following questions: first, was there at some stage an impairment which had a substantial adverse effect on the applicant’s ability to carry out normal day-to-day activities? Secondly, did the impairment cease to have a substantial adverse effect on the applicant’s ability to carry out normal day-to-day activities, and if so when?  Thirdly, what was the substantial adverse effect?  Fourthly, is that substantial adverse effect likely to recur.  The tribunal must be satisfied that the same effect is likely to recur and will again amount to a substantial adverse that the same effect is likely to recur and will again amount to a substantial adverse effect on the applicant’s ability to carry out normal day-to-day activities.
In this context, a substantial adverse effect is “likely to recur” if it is more probable than not that the effect will recur.  If the tribunal is considering whether a substantial adverse effect was likely to recur during a particular period in the past, it is entitled to look at the evidence of what occurred during that period.  However, although the tribunal must be satisfied that the substantial adverse effect is likely to recur, it need not be satisfied that the recurrence is likely to last for at least 12 months.  The effect of para.2(2) is that the impairment is treated as continuing as long as its substantial adverse effect is likely to recur.  Even if the impairment  has ceased to have a substantial adverse effect, it “lasts” for as long as its substantial adverse effect is likely to recur.
The question for the tribunal is whether the substantial adverse effect is likely to recur, not whether the illness is likely to recur.  Thus, in the case of a clinically well recognised mental illness, it is not a requirement that the mental illness itself is likely to recur.  The Act contemplates that an illness may run its course to a conclusion but leave behind an impairment.  It is possible to envisage circumstances where an impairment resulting from an illness may again have a substantial adverse effect.  However, the effect must be a recurrence of the earlier effect.  A substantial adverse effect resulting from a different impairment would not properly be described as a recurrence.”

It seems to me that the current state of law is in fact accurately set out in the last of those cases that I have cited being a useful compendium of the relevant statutory provisions, the relevant guidance and the law to be gleaned from the two earlier authorities.  

9.	In this particular case the medical evidence had not gone to the question of the likelihood of recurrence.  The reason for that was that at the time that the psychiatrist Dr Mbaya was instructed the Claimant’s case was put firmly on the basis that he remained disabled throughout, not that he was for a time disabled and thereafter there was a likelihood of recurrence.

10.	The limit of the doctor’s direct evidence as to likelihood of recurrence was in response to a letter following his initial report in which he indicated that following the Claimant’s second depressive episode he had approximately 70% chance of suffering a further episode if he did indeed completely recover from recurrent episode.  That, of course, was of little assistance to the Chairman in determining the likelihood of recurrence as at August 2004, the material date, before the second episode had occurred.  What is suggested is that the Chairman erred in law because what she did was apply Greenwood and read Greenwood and Paragraph B8 as requiring her to hold that there would be a recurrence because there had in fact been a recurrence.

11.	If that was what she had done, in my judgment that would clearly have been an error of law.  The fact that lighting may strike twice does not mean that after the first strike it is more likely than not that lighting will strike in the same place a second time.  But, in my judgment, that is not what she has done.  If one looks carefully at the short passage in the judgment, what she is saying is that regard had to be had not only to the situation as it appeared at the date of the alleged discrimination but also to what happened subsequently in assessing whether a substantial adverse effect of the impairment was likely to recur.  She uses the words “regard had to be had” rather than suggesting that “that is conclusive”.  The waters may have been mudded about the way in which she frames her next sentence:

“I conclude that, since (my emphasis) the substantial adverse effect if the impairment did, in fact, recur in February 2005, as at August 2004, until its recurrence in February 2005, the effect of the condition was likely to recur.”

That might be read as suggesting that because of the recurrence she was hold that it was inevitable that there was a likelihood of a recurrence as at August 2004 but it does not seem to me that that is what in fact she is saying because she goes on to say:

“The likelihood of recurrence of recurrence is supported by Dr Mbaya’s diagnosis of Recurrent Depressive Disorder, the characteristics of which include repeated episodes, with symptom free periods in between episodes.

And then continuing:

  Since the substantial adverse effect of the impairment was likely to recur, in accordance with Schedule 1 paragraph 2(2) the impairment is to be treated as continuing to have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities throughout the period when the effect was less severe.  By August 2004, the period the actual substantial adverse effect of the impairment was approximately 7 months.  The total period for which the effect was likely to last, including the period in which the substantial effect was deemed to continue, was likely to be at least 12 months.  The total period, as at the date of the tribunal hearing, was, in fact, substantially longer than this.  The claimant, therefore, met the definition of disability in the period from August 2004 until the presentation of the tribunal claim on 11 March 2005, the period within which disability discrimination is alleged to have occurred.”

12.	In my judgment she performed the correct operation in looking not only at events as at August 2004 but looking back with the benefit of hindsight but she did not then fall into the trap of saying: “because there was a recurrence, it must have been likely at the earlier date that there would be a recurrence.  What she is relying on as one factor was the recurrence with the substantial adverse effect and as another factor the diagnosis of Dr Mbaya and (as she was entitled to do) she looked at what his diagnosis was, namely that there was a recurrent depressive, disorder.

13.	This did not of course of itself answer the question whether the substantial adverse effects were likely to recur, because the illness could recur in a mild form without creating or causing substantial adverse effects.  For that matter it is clear that it is possible to have a case in which the sequelae of the illness continue having a substantial adverse effect without the illness itself recurring but taken together what it seems to me we have in this particular case is a finding with the benefit of the actual recurrence and with the benefit of Dr Mbaya’s diagnosis that there was likely to be a recurrence not just of the illness but of the substantial adverse effect. 

14.	What gave me some pause having reached that conclusion was whether there was evidence for the Chairman on which she was entitled to come to that conclusion.  It was argued in the Appellant’s skeleton argument that the onus was on the Claimant Respondent and that that onus was not discharged.  In my judgment, although it was a pretty close run thing, it does seem to me that there was material on which the Chairman was entitled to reach the conclusion which she did.  As with many cases which take some other unexpected terms during the course of the hearing the evidence on the point was not as direct as either party would have liked or, no doubt, as full as the Chairman would have liked but there was material available upon which she was entitled to come to the conclusion which she reached.

15.	It follows therefore that despite the argument of Mr Humphries on behalf of the Appellant I take the view that the Chairman reached a conclusion to which she was entitled to come, that she did not err in law and that the appeal must therefore be dismissed.