COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE McMULLEN QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE RIMER
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James E Petts (instructed by Free Representation Unit) for the Respondent
Hearing Date : 27 November 2007
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Lord Justice Pill :
"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".
Paragraph 2 of Schedule 1 provides:
"(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".
"52. Even if we are wrong on the issue of normal day-to-day activities, in our view the mental impairment did not have a substantial long effect as defined by Schedule 1 para 2 of the DDA, 1995.
53. The evidence before us demonstrated that the Claimant had no recurrence of the schizo-affective disorder after her discharge in February 2002, the episode having lasted at most for eight months. The Claimant could not point to any evidence (medical or otherwise) to demonstrate that between February to June 2005 she was likely to suffer a recurrence. [The Tribunal must mean a disabling recurrence]. The persistent delusional disorder is said to be long standing and may be life long by the medical experts. However, this is not the same as saying that it is likely to reoccur. There being no likelihood of a recurrence as at the date of the acts complained of the Claimant has not shown that there it was more probable than not that any mental impairment which produced a substantial adverse effect was likely to last for 12 months. In addition, Dr Roberts' evidence (p 82) makes it clear that a recurrence was unlikely".
The reference to Dr Roberts is to a letter dated 23 May 2005 from Dr Megan Roberts, the respondent's treating consultant psychiatrist. Dr Roberts stated:
"It is my opinion that Mrs McDougall is fully able to return to work and I have no concerns about her mental health relating to this".
In the event, there was what the EAT described as recrudescence of the condition in August 2005 and a readmission to hospital under the Mental Health Act in December 2005.
"The question is: what is the likelihood at the time of the statutory tort of a recurrence of the illness, given what is known at the time of the hearing".
The EAT put the point in their Summary of the decision:
"In determining whether or not a condition is likely to recur for the purposes of the assessment of disability under the 1995 Act, it is relevant to consider not only those matters extant at the date the tort was committed, but those occurring up to the date of the hearing . . . On the issue of whether the [respondent's] mental impairment would be likely to recur at the date of her rejection for a job in 2005, it was relevant to consider that it had in fact recurred when she was recommitted under the Mental Health Act . . ."
At paragraph 33, the EAT added:
"What is being assessed is the mental impairment as at the date of the statutory tort seen in the light of subsequent events . . . It is unattractive and possibly inoperable for them [Employment Tribunals] to be expected to ignore the reality of what has occurred so as to found a judgment on what might have occurred".
"In order to enable the arbitrator to come to a just and true construction it is his duty I think to avail himself of all information at hand at the time of making his award which may be laid before him. 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?"
"It is that where the court making an assessment of damages has knowledge of what actually happened it need not speculate about what might have happened but should base itself on the known facts. In non-judicial discourse the point has been made that you need not gaze into a crystal ball when you can read the book."
"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's approach was fatally flawed."
In Barker v Westbridge International Limited (unreported 8 June 2000), Judge Peter Clark again presiding, the Tribunal, by a majority, adopted the same approach to the word "likely" in paragraph 2(1)(b) of Schedule 1.
"It is always tempting to accord, and is often appropriate, when it is charged with finding out what at some earlier date the future would then have seem to hold, to have regard to what the future in fact came to pass to be, as, by the date of the hearing, will have sometimes come to be the case".
Lindsay J referred to the Bwllfa principle and continued:
"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.
Mr Harris has sought to persuade us that Greenwood v British Airways plc  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".
"In considering whether during a particular period in the past, a substantial adverse effect was likely to recur a tribunal is of course entitled to look at the evidence of what occurred during that period. In particular, if it is said that an effect was likely to recur because certain circumstances would be likely to trigger it, a tribunal is entitled to consider whether those circumstances occurred during the period and whether the substantial adverse effect did recur. Such evidence is not necessarily conclusive. It is for the tribunal to assess".
I have some difficulty in deciding upon the impact of that statement in present circumstances. The emphasis appears to be on events which occurred during a particular period in the past and not events between that period and the date of the hearing.
"We recognise that in practice it may be difficult for a tribunal to disregard evidence which shows how the medical position did in fact progress. But it is important that they should do so. Logically, subsequent events cannot be material. If an employer dismisses someone who has a disability likely to last 12 months it cannot alter the position if the employee shortly thereafter makes an unexpected recovery before the 12 months has elapsed; similarly, an employee who was not disabled when the alleged unlawful conduct occurred cannot retrospectively be found to have been disabled at that time because he takes an unexpected turn for the worse. If, contrary to our view, subsequent evidence has any materiality at all, it can only be to confirm or reinforce a conclusion about disability which the tribunal has already reached by relying on the evidence which would have been available at the relevant date".
"In assessing the likelihood of an effect lasting for a period, account should be taken of the total period for which the effect exists. This includes any time before the discriminatory behaviour occurred as well as time afterwards. 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, age)."
In considering paragraph 2(1)(b) of Schedule 1, the Guidance may appear to provide that account be taken of events after the discriminatory behaviour occurred. In Latchman, Lindsay J stated that the Guidance is not intended to displace the otherwise proper construction of the paragraph. Lindsay J also referred to the expression "typical length" in paragraph B8, an expression relevant if what is involved is a prediction. In Latchman, Elias J agreed, at paragraph 28, with Lindsay J:
"We respectfully agree; the Guidance was wrong in this respect. Whilst there is a duty to take it into account, as s3 of the Act makes clear, it must not be followed where it is inconsistent with the Act itself. We note that the guidance has been altered in a new version of the Guidance which took effect as from 2006 (which was therefore not in force at the date of this dismissal); the crucial words "as well as time afterwards" found in the original B8 have been omitted: see para C3. No doubt this was intended to reflect the decision in the Latchman case".
Lord Justice Sedley :
Lord Justice Rimer :
"We do not consider that to do so [that is, taking account of subsequent events] would visit a Respondent with retrospective liability. What is being assessed is the mental impairment as at the date of the statutory tort seen in the light of subsequent events. The House of Lords has now conclusively determined that the Bwllfa principle is capable of application in a range of circumstances outside commercial contracts. We are happy to import into the DDA Lord Bingham's 'sound approach in law as in life'. It directly applies to the Guidance, is not inconsistent with the statute and follows one EAT precedent. Employment Tribunals have to take a practical approach to the assessment of disability. It is unattractive and possibly inoperable for them to be expected to ignore the reality of what has occurred so as to found a judgment on what might have occurred."
(a) That the Appeal from the Employment Appeal Tribunal be allowed and the Judgment of the Employment Tribunal (London South), entered in the Register on the 27th day of June 2006, be reinstated.
(b) There be no Order as to costs.