Appeal No. UKEAT/0341/14/DA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

	In Chambers
	On 10 February 2016
	Judgment handed down on 22 February 2016

Before
HER HONOUR JUDGE EADY QC
(ON THE PAPERS)

CHIEF CONSTABLE OF SUSSEX POLICE	APPELLANT

MR L MILLARD	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	Written submissions	
For the Respondent	Written submissions	

SUMMARY
DISABILITY DISCRIMINATION - Disability

Disabled person - section 6 Equality Act 2010
At a Preliminary Hearing, the ET had held that the Claimant was at all material times a disabled person within the meaning of section 6 of the Equality Act 2010.  On the Respondent’s appeal and the parties having agreed terms of a consent Order by which the appeal should be allowed.

Held:
Allowing the appeal. 
The question for the ET was whether - on a predictive basis - the effect of the Claimant’s impairment was likely (i.e., so “it could well happen” SCA Packaging Ltd v Boyle [2009] ICR 1056) to last for at least 12 months, based on the evidence of circumstances prevailing at the date of the discriminatory act relied on, not subsequent events (applying McDougall v Richmond Adult Community College [2008] ICR 431).  

Notwithstanding obtaining further explanation from the ET under the Burns/Barke procedure, the parties were left not understanding the basis of the Judgment reached. 

The appeal should be allowed.  Further, following agreement between the parties that the Claimant should be held to have been disabled from 13 July 2012 (a date justified by the evidence) the ET’s finding would be set aside and substituted by the conclusion that the Claimant was disabled, for the purposes of the Equality Act, as from 13 July 2012.  

HER HONOUR JUDGE EADY QC

Introduction
1.	This Judgment is given after consideration of this matter on the papers; the parties having agreed that the appeal should be allowed and having provided a joint submission in support.  

2.	In giving my Judgment, I refer to the parties as the Claimant and the Respondent, as below.  This is the Respondent’s appeal against a Judgment, on a Preliminary Hearing, of the Employment Tribunal sitting at Havant (Employment Judge Coles, sitting alone on 22 April 2014; “the ET”), sent to the parties on 20 May 2014.  The Claimant was represented before the ET by Mr Dobson of counsel and the Respondent by Mr Self of counsel.

3.	By its Judgment, the ET held that the Claimant was at all material times a disabled person within the meaning of section 6 of the Equality Act 2010 (“EqA”).  The Respondent appealed.  Having initially considered the proposed appeal at an Appellant-only Preliminary Hearing on 2 February 2015, I directed that further reasons should be requested of the Employment Judge under the Burns/Barke procedure (Burns v Royal Mail Group PLC [2004] ICR 1103; Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 578).  Upon receipt of those reasons and after the resumption of the Preliminary Hearing, I directed that this matter should proceed to a Full Hearing.  Subsequent to that ruling, the parties have made clear their agreement that this appeal should be allowed.

The ET’s Conclusions and Reasoning and the Issue Raised by the Appeal
4.	As the ET records, the disability relied on by the Claimant was of mental impairment, namely depression/anxiety/panic disorder.  It rejected the suggestion, however, that there was a history of depression such as to establish that symptoms suffered by the Claimant in 2012 amounted to a recurrence of a previous impairment.  

5.	On the basis of the Claimant’s evidence and the supporting documents (including GP records), the ET held that the “start date” of his depressive condition was 2 March 2012.  

6.	The Claimant had been dismissed by the Respondent on 20 November 2012.  That was thus the last date of any alleged discriminatory act, which was accordingly less than 12 months from the date when the ET had determined that the Claimant’s mental impairment commenced.  

7.	The question for the ET was, therefore, whether - on a predictive basis - the effect of the Claimant’s impairment was likely to last for at least 12 months, based on the evidence of circumstances prevailing at the date of the discriminatory act relied on, not subsequent events (McDougall v Richmond Adult Community College [2008] ICR 431).  

8.	Looking at that point in time, the ET concluded that::
“11. … the claimant had significant difficulty at the material times in concentrating on matters, felt down, depressed and hopeless nearly every day, had trouble falling or staying asleep, had poor appetite and … had suicidal thoughts and self-hurting tendencies. …”

9.	In the circumstances, the ET was satisfied that the effects of the Claimant’s impairment were more than minor or trivial and continued.  Further, applying SCA Packaging Ltd v Boyle [2009] ICR 1056 (so, “likely” means, “it could well happen”), the ET considered that at the relevant time the Claimant’s impairment was likely to last for at least 12 months.  

10.	On that basis, the ET concluded:
“13. … the claimant was at all material times a disabled person within the meaning of … the Equality Act 2010.”
11.	The question at the heart of the Respondent’s appeal was whether the ET’s reference to “at all material times” at paragraph 13 in fact referred to the entirety of the possible period from the start date of 2 March 2012 to the date of dismissal.  If so, the Respondent argued there was no evidence to support a conclusion that the impairment was likely to last at least 12 months as at the starting point identified by the ET; that is, 2 March 2012.  

12.	Having been provided with the opportunity to clarify the reasoning in this respect, the ET made clear that was, indeed, what was intended:
“The term “at all material times” … refers to the dates of the alleged discriminatory behaviour by the Respondent between 2 March 2012 and the termination of the Claimant’s employment on 21 November 2012 …”

13.	In terms of the evidence relied on by the ET in this respect, reference was made to that given by the Claimant himself and to the entries in his GP’s notes.  

14.	The difficulty with that, as the Respondent argued, was that it was difficult to see how that evidence had enabled the ET to conclude that the effect of the Claimant’s impairment was, as at 2 March 2012, likely to be long-term.

Discussion and Conclusions
15.	As at the last possible date of any discriminatory act, the Claimant’s impairment, as found by the ET, had not yet lasted 12 months.  That did not mean its effect was not long-term (so as to meet the requisite definition under the EqA), but it did require the ET to determine whether - on a predictive basis - the effect of the Claimant’s impairment was likely (could well happen; see Boyle) to last for at least 12 months based on the evidence of circumstances prevailing at the date of the discriminatory act, not subsequent events (McDougall).  

16.	In terms of the evidential material relating to the relevant time - that is, from 2 March 2012 until the Claimant’s dismissal - the position before the ET was that the Claimant had remained at work until signed off for two weeks at the beginning of 2012.  He returned to work on 23 April but over the next three months or so had periods of work punctuated by sickness absence.  He was seen by occupational health on 5 May 2012, but that did not give rise to anything that would suggest his impairment was likely to be long-term at that stage.  The Claimant then went absent due to ill-health on 13 July 2012 and did not return, albeit he initially provided a medical certificate for one week and was then given monthly certificates.  

17.	For his part, the Claimant had referred to earlier periods of ill-health, but the ET had rejected the suggestion that there was a history of depression such as to establish his symptoms in 2012 amounted to the recurrence of a previous impairment.  In his witness statement the Claimant referred to symptoms prior to/around 2 March 2012, but, having rejected his case on impairment prior to 2 March 2012, it is unclear as to what the ET was referring to in terms of that statement as providing the evidential basis for its conclusion that - looking forward at that point, as opposed to looking back from some later vantage point - it was likely that the effects of his impairment would last for at least 12 months.  The GP records similarly do not greatly assist in this regard, as all but three entries post-dated 2 March 2012.

18.	Allowing that the ET had to carry out an assessment on the material before it, the parties were left not understanding the basis of the Judgment reached.  It is in those circumstances that agreement has been reached that the appeal should be allowed.  

19.	Given the uncertainty arising from the ET’s explanation for its conclusion, I accept that that is the appropriate course, and I duly allow the appeal on that basis.  
20.	Moreover, adopting a pragmatic approach in this regard, the parties have further agreed that the ET’s conclusion should be set aside and a finding substituted that the Claimant was disabled, for the purposes of the EqA, as from 13 July 2012.  That seems to me to be a position justified by the evidence to which I have been referred, and the course proposed is plainly in keeping with the requirements of the overriding objective.

21.	In those circumstances, I order that the ET’s decision is set aside and substituted with a Judgment that the Claimant was a disabled person for the purposes of the EqA from 13 July 2012.  As the proposed consent Order recognises, the case needs then to be remitted to the ET for further directions and case management.  Although I see no reason why this matter need return to the same Employment Judge, I equally see no reason why it should not.  In the circumstances, I direct it be remitted to the ET, to be listed before any Employment Judge.