Appeal No. UKEAT/0091/10/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 July 2010

Before
THE HONOURABLE MR JUSTICE WILKIE
(SITTING ALONE)

MS B ANWAR 	APPELLANT

TOWER HAMLETS COLLEGE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS SALLY ROBERTSON 
(of Counsel)
Free Representation Unit	
For the Respondent	MR MARK GREEN
(of Counsel)
Instructed by:
Messrs Berry Smith LLP
1 Northumberland Avenue 
Trafalgar Square
London
W1S 1HT

SUMMARY
DISABILITY DISCRIMINATION - Disability

In considering the likely duration of an impairment the Employment Judge misconstrued the meaning of “likely” and wrongly regarded as determinative the availability of potentially effective treatment, whereas that should only have been considered as one of the relevant factors to be considered. 

THE HONOURABLE MR JUSTICE WILKIE

1.	On 20 May 2009 Employment Judge Glennie sitting at the Employment Tribunal at Stratford on a pre‑hearing review decided, amongst other things, that the Claimant, Ms B Anwar, was not at the material time a disabled person within the meaning of the Disability Discrimination Act 1995.  Her claims under the Disability Discrimination Act were therefore dismissed.  She appeals against that decision.  

2.	At a previous hearing before a different Employment Judge, to determine the issues to be decided, the relevant issue for these purposes was identified as: 

"Whether Miss Anwar was at the relevant time, that is around November 2006 to June 2007 a disabled person within the meaning of the Disability Discrimination Act."

3.	The period in question which was identified by the Employment Judge started with the onset of symptoms constituting a frozen shoulder.  Thereafter there were headaches which were also said to amount to a disability which commenced in January 2007.  The date of June 2007 was the date of the alleged discrimination on grounds of disability.

4.	The relevant statutory provisions which are in play in this appeal include section 1 of the Disability Discrimination Act 1995, which provides for meaning of "disability" and subsection (1) of which provides: 

"(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long‑term adverse effect on his ability to carry out normal day‑to‑day activities."

5.	Schedule 1 of the Act makes certain detailed provisions.  In particular, paragraph 2 provides for long‑term effects.  In so far as is relevant it provides as follows:  

"(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 
(c) it is likely to last for the rest of the life of the person affected. 
(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. 
(3) For the purposes of sub‑paragraph (2), the likelihood of an effect recurring shall be disregarded in prescribed circumstances. 
(4) Regulations may prescribe circumstances in which, for the purposes of this Act— 
(a) an effect which would not otherwise be a long‑term effect is to be treated as such an effect; or. 
(b) an effect which would otherwise be a long‑term effect is to be treated as not being such an effect."

6.	That Schedule also makes provisions in respect of the meaning of "Substantial Adverse Effects" and provides: 

"5 	Regulations may make provision for the purposes of this Act— 
(a) for an effect of a prescribed kind on the ability of a person to carry out normal day‑to‑day activities to be treated as a substantial adverse effect; 
(b) for an effect of a prescribed kind on the ability of a person to carry out normal day‑to‑day activities to be treated as not being a substantial adverse effect."

7.	It also provides for the effect of medical treatment.  By paragraph 6 which provides:  

"6(1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day‑to‑day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect. 
(2) In sub‑paragraph (1) 'measures' includes, in particular, medical treatment and the use of a prosthesis or other aid."

Sub-paragraph (3) makes certain provisions for what sub-paragraphs are not to apply in certain circumstances, which are not of relevance in this case.

8.	Although in Schedule 1, provisions are made for regulations to be made, in the circumstances described in paragraph 2(4) and paragraph 5, no such regulations have been made.  Section 3 of the Disability Discrimination Act provides for guidance to be issued by the Secretary of State about matters to be taken into account in determining whether a person is a disabled person and the statute requires the tribunals to have regard to such guidance when determining such questions.

9.	Of course, as we will see in a moment, that guidance does not have the effect of statute and is not declarative of the law.  It is for the courts to declare what the law is.  It may be, and on a relevant occasion the courts have decided, that the guidance given does not reflect the law.  That guidance was issued and, in its present form, provides, in section B, guidance in relation to the meaning of “substantial adverse effect”.  Paragraph B1 provides as follows:  

"The requirement that an adverse effect on normal day‑to‑day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people.  A substantial effect is one that is greater than the effect which would be produced by the sort of physical or mental conditions experienced by many people which only have 'minor' or 'trivial' effects.  This section looks in more detail at what 'substantial' means.  It should be read in conjunction with Section D which considers what is meant by ‘normal day‑to‑day activities’." 

10.	For the purposes of this appeal, none of the other provisions of section B are of significance.  

11.	Section C concerns the meaning of “long‑term effects”.  Paragraph C1, provides: 

"The Act states that, for the purpose of deciding whether a person is disabled, a long‑term effect of an impairment is one:
•	which lasted at least 12 months; or 
•	where the total period for which it lasts, from time of the first onset, is likely to be at least 12 months ..."

12.	The gloss on the statute in the words "from time of the first onset" is, in my judgment, and it would appear by agreement a reference to the start point of the total period for which in relation to that aspect of the matter the disability is likely to last.

13.	The point at which the exercise of considering for how long, starting from that point, the disability is likely to last is, it is agreed and established by case law, the first date of the alleged discrimination.  It is for that reason that the Employment Judge, at the pre‑hearing review identified the relevant time as between November 2006 and June 2007. 

14.	The guidance goes on to give guidance in respect of the meaning of "likely".  Paragraph C2 reads:  

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

And C3, provides:  

"In assessing the likelihood of an effect lasting for 12 months, account should be taken of the total period for which the effect exists. This includes any time before the point at which the alleged incident of discriminatory behaviour which is being considered by the adjudicating body occurred.  Account should also be taken of both the typical length of such an effect on an individual, and any relevant factors specific to this individual (for example, general state of health or age)."

15.	The learned Employment Judge made certain findings of fact based on the evidence that he heard from Ms Anwar.  He also had the benefit of a report from Dr Harvey, a consultant neurologist dated 16 September 2008, supplemented on 14 October 2008.  This was pursuant to the Tribunal's direction that a joint expert be instructed.  The Employment Judge concluded that Ms Anwar gave her evidence honestly, and that Dr Harvey's report was impartial.

16.	The learned Judge then went on to explain that he was concerned with two conditions:  The first, recurrent headaches, the second pain, stiffness and weakness and even paralysis effecting the left shoulder and arm.  Ms Anwar's evidence was that the prior cause of the headaches started in November 2006.  She said that from January 2007 onwards, she suffered from headaches.  A headache could last from two to three minutes up to 20 to 30 minutes.  If she suffered headaches of the more severe variety she had to sit and close her eyes.  The level of pain was variable; it could be severe or it could be moderate.  It could be precipitated if she was exposed to cold conditions or to stress.  There were some days when she did not experience headaches and some when she experienced more than one. The more severe ones tended, but not invariably, to happen in the evening, after work.  Generally the shorter ones happened during the working day.  On average, very much as an approximation, she said she would suffer one headache per day.

17.	The learned Judge also referred to a severe attack of headache in January 2007.  Dr Harvey's conclusion was that that illness and the very severe attack of headache in January in 2007 was unrelated to the ongoing problem.  The Judge accepted that as consistent with the evidence of Ms Anwar.

18.	As far as the frozen shoulder was concerned, there was little in the learned Judge's decision about what that amounted to.  That was because there was no dispute in relation to that impairment that it did have a substantial adverse effect.

19.	The issues were different for the Employment Judge in relation to each of the impairments complained of and said to give rise to a statutory disability.  As far as the headache was concerned, it was not conceded that that had a substantial adverse effect.  In relation to both of the impairments there was an issue as to their longevity.  

20.	The learned Judge dealt with the question of the substantial adverse effect of the headaches in paragraph 12 of his reasons.  He said as follows:  

"I have referred again to the statutory guidance as to the definition of disability and in particular when considering the headaches to the meaning of substantial adverse effect.  Taking that into account I find that these headaches, although by no means negligible, did not give rise to a substantial adverse effect within the meaning of the Act. In my judgment, again referring to the words in the guidance, one could not describe these headaches as trivial.  However they are, as I find, an example of the sort of physical condition experienced by many people which has what can fairly be described as a minor effect.  I have no doubt that the headaches are unpleasant while they last.  However, many people suffer pains whether in the form of headaches, backaches, neck pain or whatever that is either at a relatively low level or, as is the case here, of relevantly short duration and taking that into account I find that there was not a substantial adverse effect amounting to disability."

21.	The grounds of appeal of the Appellant contain an attack on that conclusion.  Effectively, the point is made that there must have been an error of law in that the learned Judge has misconstrued the terms of the guidance and, in particular, the guidance set out in paragraph B1.  It is said that, given his conclusion that the adverse effect was more than trivial, it necessarily followed that the “substantial adverse effect” requirement was satisfied.  It is said that the Judge has misconstrued the guidance by concluding that an impairment can have a more than trivial effect, and yet have a minor effect, which would preclude it having a substantial adverse effect.

22.	Although it is accepted by the Appellant that the guidance is not statute, is not susceptible to a minute level of construction and is not something which has to be applied by the Employment Judge as it were a statute, it is nonetheless said this is a freestanding arguable point.  

Second, if, and to the extent, that this point does not succeed, the alternative way of putting it is that the Employment Judge, in his reasons, has failed properly to articulate the basis of his conclusion particularly having regard to the finding of fact that the headaches occurred on average once a day. 

Third and very much as a fallback, it is said that, given the evidence that the Judge accepted as true, his conclusion that the impairment did not have a substantial adverse effect was perverse.

23.	The argument to the contrary is to the effect that the words "minor" and "trivial" are not synonymous.  They are both included in the guidance. They have different nuances.  "Trivial" may be at a lower level than "minor".  Accordingly, there is no necessary error of law in describing the effect as more trivial and yet also describing it as minor.  If that be right, it said that the terms of paragraph 12 demonstrate precisely what his thinking was and that his thinking follows the kind of approach which is exemplified in the guidance at paragraph B1.  It is said that the conclusion to which he came on the evidence was a conclusion to which he was entitled to come and does not remotely approach the level of error which could properly be described as perverse.

24.	In my judgment, the grounds raised by the Appellant in respect of this issue are not persuasive.  This is not a statute.  It is a document giving guidance which has to be regarded.  There is nothing, in my judgment, wrong in law or amounting to a misdirection of law for an Employment Judge to conclude that an effect of an impairment was more than "trivial" and yet still "minor" as opposed to "substantial".

25.	Of greater moment is the fact that the reasoning of the Tribunal does not simply baldly assert that the effect is minor, though more than trivial.  Paragraph 12 follows quite closely the approach which is recommended in paragraph B1 and, in my judgment, the fact that he had previously recorded in paragraph 10 the number and frequency of the headaches, as well as their effect, makes it impossible for it to be said that the reasons do not sufficiently set out his reasoning.  Nor, in my judgment is his conclusion one which could properly be described as "perverse".  It therefore follows that the appeal does not succeed on that particular ground.

26.	Given that that is the case then, in my judgment, that means that the other arguments raised in the appeal in respect of “long‑term effect” do not fall to be decided in respect of this particular impairment because, having come to an unimpeachable conclusion that the disability did not have substantial adverse effects, the question whether they were long‑term effects is neither here nor there.

27.	As it happens, I will be upholding the appeal in respect of each of the two grounds argued for, in relation to “long term effect”.  But the errors on that issue are not such as to infect the propriety of the Judge’s reasoning and conclusions in respect of this ground.  Accordingly, in respect of the headache impairment, I dismiss this appeal.

28.	In respect of the headaches and frozen shoulder the Judge had to consider whether the case fell within paragraph 2.1B of Schedule 2, that is whether the period which lasts is likely to be at least 12 months.  

29.	In considering the word "likely" the learned Employment Judge followed paragraph C2 of the guidance. He was assisted by the report of Dr Harvey who had been provided with that guidance.  Dr Harvey had expressed an opinion whether either of the impairments but, in particular, the frozen shoulder was likely to last at least 12 months as a total period.  He considered that it would not because he concluded that had the Claimant been receiving ongoing effective treatment or was to receive on going effective treatment: 

"On a balance of probabilities she would have been able to continue with her day‑to‑day activities." 

And as a consequence, implicitly, that the impairment would not last for 12 months.  Dr Harvey said that the substantial adverse effects would be likely to last for at least 12 months in the absence of ongoing treatment.

30.	The Employment Judge referred to this issue and referred to Dr Harvey's report in the following terms in paragraph 16:  

"... Dr Harvey said....that this condition.... was amenable to treatment by a rheumatologist and probably a physiotherapist.  It is true to say that in saying that Dr Harvey does not give a time scale.  However, the letter of  instruction that led to his report referred in clear terms to the requirement that I have referred to that any condition, I order to amount to a disability, should last for 12 months or be likely to last for 12 months when it first arose.  [It seems to me that what he means is from when it first arose.]  It seems to me that Dr Harvey's conclusion must be read in the light of that letter of instruction.  I therefore find that when he says that the condition was or is treatable that he must mean treatable within that period because otherwise it would be a pointless observation in the context of the letter of instruction and in the context of questions that he was being asked.   
17. I therefore find that, again as judged at the material time, this was a condition that was not likely to last for more than 12 months and so was not to be regarded as a long term condition." 

31.	He had previously, in dealing with the applicable law, at paragraph 7, referred to the guidance at C2 in relation to the meaning of "long term effect" and recorded that the guidance provided that the meaning of "likely" is defined as meaning more probable than not that it will happen.  It is not difficult to infer that the test that he was applying in paragraph 16 and 17 was “the more probable than not” test.

32.	Two grounds of appeal are raised in respect of this finding.  The main ground is that it is now clear from the House of Lords decision in SCA Packaging Limited v Boyle [2009] UKHL 37, that the guidance is wrong when it describes "likely" as meaning more probable than not.  It is clear from that decision that the word "likely" means what it says, but, putting it another way, means "may well be" or "could well happen".  Plainly that is a less onerous test than establishing that it is “more likely than not”.

33.	That case had either not yet been decided, or had only just been decided, when the Employment Judge conducted his hearing and came to his conclusion.  It was not cited to him.

34.	In fairness to both the Employment Judge and Dr Harvey, they were loyally having regard to the guidance given by the Secretary of State in paragraph C2 and were misled by it.  But, equally, there is no doubt that the Judge was applying the wrong test and that Dr Harvey had in mind the wrong test when he advised on the medical matters.  In my judgment, therefore, this ground of appeal must succeed.

35.	It is quite hopeless to argue that the Judge, if he had had his mind addressed to the correct test, would have reached the same conclusion.  That is a wholly speculative exercise which this Tribunal is not prepared to engage in.  It therefore follows that this appeal, in relation to the frozen shoulder, must succeed and the matter should be remitted to a different Employment Judge for that issue to be determined, having regard to the correct test and by hearing the evidence afresh.  That is sufficient to deal with this appeal.  

36.	However, the other ground of appeal in relation to this particular impairment does raise a point upon which the Employment Judge should be given some guidance.  Putting in its starkest form, it is said that the Employment Judge erred in law when he had regard to the possibility that, in the future, or at least during the balance of the 12‑month period that he was considering, the Claimant's condition would have been cured had she undergone medical treatment, basing that conclusion on the evidence of Dr Harvey that the frozen shoulder was amenable to treatment by a rheumatologist and, probably, a physiotherapist.  It said that that approach was wrong in principle because there is no express provision for it in the statute.  It is said that there is express provision for consideration to be given to the impact of medical treatment which has been or is being conducted on the ongoing nature of the disability.  It is said that there is provision in the legislation for regulations to be made which would enable a Tribunal to conclude that what would otherwise be a continuing disability, should not be one in circumstances which could include the availability of reasonably available and effective medical treatment.  But that no such regulations have been made.

37.	The Respondent argues that were that correct, as a matter of  pure statutory construction, it would ignore the fact that paragraph 2.1B, with which we are concerned, requires the Tribunal to engage in an exercise of informed speculation on whether the period of the impairment is likely to be at least 12 months.  It is pointed out that if, for example, a Claimant suffered a dislocated shoulder, and the alleged discrimination began very shortly after that event, then the Tribunal, in conducting the speculative exercise in 2.1B, would be obliged to disregard the overwhelming likelihood that that condition would be treated and would be cured very long before the expiration of a 12‑month period.  

38.	In my judgment, the Employment Judge, in engaging in that exercise of speculation, has to have regard to all relevant matters which would include not only the period, before the relevant date, during which the impairment has lasted, but also any treatment which has been received during that period and any treatment which might reasonably be available during the succeeding part of the 12 month period.  However in a case such as this it requires quite a sophisticated analysis of a number of factors:  the length of the unexpired period of 12 months; whether any medical treatment has been sought or given during the initial period; whether or not it would be reasonable for the individual concerned now to seek that treatment; whether that treatment is generally available; and the likely effect of that treatment within the period of twelve months.  It seems to me that the learned Employment Judge in this case took too much as read from Dr Harvey's report and gave it over much emphasis in the exercise in which he was engaged.  In both paragraph 16 and paragraph 17, he seems to regard the medical evidence of Dr Harvey as being determinative of the issue.  He uses the word "therefore" in moving from the effect of Dr Harvey's medical report to his conclusion.  In any event, as I have already indicated, the appeal succeeds in respect of the frozen shoulder on the application of the wrong legal test but, in my judgment, it would also have succeeded on this ground as well.  It may be useful for the Employment Judge who has to determine this matter on remission to have regard to what I have indicated in respect of this particular ground.   

The appeal succeeds in respect of the frozen shoulder issue; that part of the case is remitted to a different employment Judge for determination. The appeal is dismissed in respect of the headache issue.