England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE EMPLOYMENT
APPEAL TRIBUNAL

		The Royal Courts of Justice The Strand London Friday 15 February 2002

Friday 15th February 2002

1. LORD JUSTICE MUMMERY: This is a renewed application for permission to appeal. The application is made by Mr Engelman and Mr Pezzani on behalf of Mrs LM Mills. The decision which she wishes to appeal is that of the Employment Appeal Tribunal on 7 November 2001, dismissing an appeal by Mrs Mills.
2. Her appeal to the Employment Appeal Tribunal was from the decision of the Employment Tribunal sitting at London North, when, after a hearing on 3 and 4 April 2000, the Employment Tribunal unanimously decided that the London Borough of Hillingdon, the respondent in the proceedings, had not discriminated against Mrs Mills contrary to the Disability Discrimination Act 1995. The extended reasons for the Tribunal's decision were sent to the parties on 12 June 2000.
3. Following the unsuccessful appeal to the Appeal Tribunal an application was made to this court for permission to appeal, which was dealt with by me on the papers on 18 December 2001 when I refused permission, as I was unable to detect an error of law in the extended reasons of the Employment Tribunal.
4. I considered that application on the basis of a skeleton argument submitted by Mr Engelman and Mr Pezzani. In support of the renewed application there is a new skeleton argument, not making fresh points but confining the application to one point of principle which, it is contended, raises an important point of general importance on the interpretation and application of the Disability Discrimination Act 1995.
5. The background to the point can be briefly sketched. Mrs Mills was employed by the London Borough of Hillingdon from 2 January 1990 until January 2000, working in the latter part of her time in the Home Care Department. Unfortunately she suffered from depression and she had started proceedings against the London Borough of Hillingdon under the 1995 Act while she was still employed. The application was presented to the Tribunal on 2 August 1999.
6. In her application she attached brief details of her complaint and asked the Tribunal to make a finding of unlawful discrimination under the 1995 Act. She complained that she had been unlawfully treated in a number of ways. She claimed that she had a disability within the definition of the Act, namely depression, and said that that was a mental impairment which had a substantial and long-term adverse effect on her ability to carry out day-to-day activities. She alleged that the London Borough of Hillingdon had not complied with its obligations under section 6 of the Disability Discrimination Act, in that it had not made reasonable adjustments and it had placed her at a substantial disadvantage in comparison with persons who were not disabled. It placed her in an unnecessarily stressful situation and it had led her to believe that a permanent post would be available which would suit her health, thus raising her hopes, when such a post had not been definitely decided upon. When she was on sick leave it failed to make reasonable adjustments to ensure that she was properly paid and she had suffered detriment as a result of its failure to make reasonable adjustments, in that her health had worsened to the extent that she was again on anti-depressants and unable to work for the time being.
7. At a preliminary hearing on 8 November 1999 the Employment Tribunal had decided that Mrs Mills was a disabled person within the meaning of section 1(1) of the 1995 Act and it was found as a fact that she was suffering from an impairment which had substantial and long-term adverse effects on her ability to carry out normal day-to-day activities and that that effect was likely to recur. The full hearing of her complaint, however, was not successful and the appeal which it is sought to obtain permission to bring focuses on a single point that arose in relation to the evidence in her case.
8. The point is identified by the Employment Tribunal in its extended reasons, paragraph 17, where the Tribunal said this:

" . . . the Tribunal concluded that the Applicant's case had not been put, either at the full Merits Hearing or the Preliminary Hearing, on the basis that the disabilities of which she complains at page 4 were continuing and operating upon her as a matter of fact at all relevant times. No evidence was before the Tribunal that she was suffering from adverse effects at the times in question, and the evidence that has been put indicates the contrary. On that basis the Tribunal refused to permit Mr Pezzani to put to the Respondent's witnesses in cross-examination that the Applicant was suffering from actual impairment or adverse effects during that period."

9. When that point was put to the Appeal Tribunal, the ruling of the Employment Tribunal was affirmed in the judgment of the Appeal Tribunal which was given on its behalf by Lord Johnston. The point was identified in paragraph 12 onwards. I read from the Appeal Tribunal's judgment:

"It . . . has to be observed that in the course of the decision, the Tribunal narrate that they prevented Counsel for the appellant at the hearing before them, cross-examining the respondents' witnesses to the effect that the appellant was suffering from actual impairment or adverse effects during the time she was working in the Personnel Department. The reason for this is stated by the Chairman in a letter dated 13 February 2001 to this office to which we merely make reference for its terms.

13. In opening on behalf of the appellant, Mr Engelman laid much emphasis on this refusal on the part of the Tribunal to allow the cross-examination to which we have made reference. He submitted that having regard to the finding of the preliminary hearing that the refusal to permit this cross-examination was wrong in law and prejudicial to the whole of the appellant's case before the Tribunal. He submitted that it was wrong in law having regard to the finding of the preliminary hearing to the effect that the appellant was suffering from a relevant disability in terms of impairment which was likely to recur in terms of the paragraphs in the Schedule to which we made reference. Thus, he submitted, the right to cross-examine on this point could not be denied. Secondly, he maintained, under findings in fact of the tribunal in respect of the credibility of the appellant which effectively accepted the witnesses for the respondents' evidence and held that the appellant was not suffering in fact from the terms of her illness at the relevant time. Effectively, the Tribunal did not accept the appellant's evidence that she knew the post and was expecting to get it. Mr Engelman's submission was that if the cross-examination in issue had been permitted it might well have had a relevance to the credibility on this basic question of the status or otherwise of the permanent post and the appellant's position in relation to it and thus the decision, he submitted, was skewed because the issue of her health generally and because this particular point had not been investigated."

10. Lord Johston went on to say in paragraph 14:

"We can deal with this point shortly because we consider it to be wholly misconceived as indeed the Tribunal Chairman recognises in her letter. The fact that there is a finding of fact which qualifies under the Schedule with regard to continuing impairment on the basis of it being likely to recur, does not mean, as we have already pointed out, that throughout the relevant period at all times the illness or condition is present. There can be periods of remission or temporary cure. It is therefore wholly relevant to seek to establish that such a period existed if it is relevant to the issue occurring in any particular case. The oddity about this case is that, having submitted that the issue was determined as a matter of law, we should have thought that meant it was settled and therefore a further cross-examination on the point is neither necessary or indeed appropriate. If that were not enough, however, the Tribunal quite rightly focused upon the IT1 which made it clear that the appellant came to the Tribunal stating that at the relevant time her health was good and that she was prepared to take up the new job. While the issues of this Tribunal are not dependent on pleading, it nevertheless is very important, in our opinion, not to lose sight of the original case brought by the appellant in his or her IT1 if credibility issues arise. It follows, therefore, that what Counsel before the original Tribunal was seeking to do, was to cross-examine against the express case brought before the Tribunal by the appellant, or applicant as she then was, on the issue of fact as to the state of her health while working in the Personnel Department. This is a classic example of where the pleading should rule of the matter, as the Tribunal have themselves decided.

15. In these circumstances we determine that the approach of the Tribunal to the issue of cross-examination as focussed by Mr Engelman, is entirely correct both in law and fact and is unassailable. We need not therefore consider whether there were any adverse effects in fact from that decision as regards the position of the appellant."

11. Mr Engelman submits on the renewed application that the ruling of the Employment Tribunal, as affirmed on appeal, in fact raises an important point of principle which is free of authority apart from those decisions. The basis of his criticism of the ruling starts with the definition of "disability" and "disabled person" in section 1, which I have referred to. He referred us to sections 5(2) and 6(1) and 6(2), which I need not repeat.
12. The next provision of importance for the submission is contained in the provisions in Schedule 1 to the Act which supplements section 1. Under paragraph 1(1) mental impairment is defined as including "an impairment resulting from or consisting of a mental illness only if the illness is a clinically well recognised illness." Paragraph 2 deals with long-term effects. In 2(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) [and this is the crucial provision]: 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."

13. In support of the submission made upon the section and that paragraph of schedule 1 Mr Engelman also refers to paragraph 9 of the Code of Practice in annex 1. Under the heading "What if the effects come and go over a period of time" it says, and I quote:

"If an impairment has had a substantial adverse effect on normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur; that is if it is more probable than not that the effect will recur. To take the example of a person with rheumatoid arthritis whose impairment has a substantial adverse effect, which then ceases to be substantial (ie the person has a period of remission). The effects are to be treated as if they are continuing, and are likely to continue beyond 12 months, if

- the impairment remains; and

- at least one recurrence of the substantial effect is likely to take place 12 months or more after the initial occurrence.

This would be a long term effect."

14. It is therefore submitted that in essence the legislation provides that, as long as there is evidence that an effect of the disability is likely to recur, that effect is to be treated as a matter of law as continuing, even if it is in fact a temporary remission. It is on this point that Mr Engelman says that the Tribunals below fell into error in finding that the existence of a continuing effect was a matter of evidence. He referred to the paragraphs in the extended reasons of the Employment Tribunal and of the judgment of the Appeal Tribunal which I have already quoted. He says that those conclusions are at variance with the statutory language and with the guidance in the Code.
15. He continued that the repetition of the clear language in the legislation is indicative of the importance ascribed to it by Lord Johnston and is vital to a proper understanding of the Act; that is, if the effect of the disability is to be treated as continuing even in periods of remission, a disabled employee obtains consistent protection from discrimination throughout the course of his disability. The alternative, it is submitted, would involve employer and employee being subject to a duty that comes and goes from day to day, depending on the effect of the disability. The Act would thereby become unworkable. It was claimed that this was a substantial mischief which the Act sought to avoid by the provisions referring to the recurrent effects of impairments as a continuing disability.
16. In my judgment this appeal has no real prospect of success because there has been no error of law on the part of the Employment Tribunal in the ruling that was made when that ruling is properly understood. I would agree with Mr Engelman that the legislation is clear on this point: a person who suffers from a physical and mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities, is a disabled person within the meaning of the Act and remains a disabled person if those effects are held, on the evidence, to be likely to recur. That is clear from the provisions of schedule 1, paragraph 2(2) which expressly provides that "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." In this case it was found as a fact that the effects of the impairment were likely to recur. That means that, from the evidential point of view, it was not open to the London Borough of Hillingdon to adduce evidence to contradict the fact that Mrs Mills was a disabled person for the purposes of the definition in section 1(1) of the 1995 Act.
17. That does not mean, however, that all evidence about Mrs Mills' actual condition in the period when she has a remission from the effects of her impairment are irrelevant for other purposes. It was not open to the London Borough of Hillingdon to say that she was not a disabled person who could complain of discrimination, but it was open for evidence to be led by Mrs Mills about her actual condition in a period of remission and it was open to the London Borough of Hillingdon to call evidence about the same matter. There are other issues arising from a complaint of disability discrimination to which such evidence might be relevant. All one can say definitely at this stage is that it could not be relevant to the actual status of Mrs Mills as a disabled person during the period of remission.
18. Putting the matter another way, I would not regard the period of remission as being a "no-go area" from the point of view of evidence of either side. In this case, in those circumstances, the Tribunal had a discretion to rule as to what questions could properly be put by Mr Pezzani during cross-examination of the witnesses of the London Borough of Hillingdon. I see no error in the exercise of their discretion in ruling that he was not entitled to cross-examine them in the way that is described in paragraph 17 of the extended reasons. In order to appeal against that ruling there would have to be shown to be an error of principle in the exercise of the discretion. Mr Engelman has attempted to establish an error of principle in the argument that I have summarised as to what he says is the misinterpretation of section 1(1) and paragraph 2(2) of the first schedule. For the reasons which I have already given, I do not agree with Mr Engelman that there was a misinterpretation by the Employment Tribunal or by the Appeal Tribunal of the effect of those provisions.
19. For those reasons, this appeal has no real prospect of succeeding and I would therefore refuse the application for permission
20. LORD JUSTICE PILL: I agree.
ORDER: Application refused