United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Robert Thomas (solicitor) Messrs Eversheds LLP Solicitors 1 Callaghan Square Cardiff CF10 5BT
For the Respondent	Miss H Gowers (of Counsel) Instructed by: Messrs Thompsons Solicitors Agincourt House 14-18 Newport Road Cardiff CF24 0SW


 


SUMMARY

Disability Discrimination - disability

The Claimant suffered a dislocation of her left knee cap on two occasions. She was a person who had an increased risk of dislocation of the patella. Between the first and second dislocations she made a complete recovery. Held: the Employment Tribunal was entitled to find the impairment continued though there were no adverse effects between the two dislocations and to hold she was disabled within the meaning of the Disability Discrimination Act 1995 (DDA).


 


HIS HONOUR JUDGE REID QC

1. This is an appeal from the decision of an Employment Tribunal (Mr P Cadney, Chairman sitting alone) held at Cardiff on 13 April 2007. The decision was sent to the parties on 1 May 2007. The Tribunal determined as a preliminary point this that the Claimant did satisfy the definition of being a disabled person within the Disability Discrimination Act 1995. Against this decision the Respondent appeals.

The basic facts

2. From 12 December 1996 to 9 September 2005 the Claimant was employed as a customer service adviser by the Respondent. On 2 July 2002 the Claimant suffered a dislocation of the left patella when it appears to be common ground she knocked her knee against a piece of furniture at home. Until the beginning of 2003 this had a substantial adverse effect on her day-to-day activities. By the start of 2003 she had made a full recovery, but on 30 July 2005 of the Claimant again dislocated her left patella, and this had a substantial adverse effect on her day-to-day activities. The second dislocation occurred while she was in the street. It appears (though there seems to have been no express finding on the point) that she was either pushed or possibly tripped. She felt the knee cap so pushed it back into place and continued on her way.
3. Because of her poor attendance record in relation to other matters on 6 June 2005 the Claimant had been required to attend a "stage 2 absence meeting", which concluded in her being set a target of one day's absence in the following six months. The result of the further dislocation of her patella was that from 1 to 30 August 2005 she was absent from work. On 7 September 2005 she was dismissed, having failed to achieve the required level of attendance. She lodged an ET1 claiming unfair dismissal and on 12 January 2006 she lodged an amended ET1 including a claim for disability discrimination.

The issue

4. The Tribunal identified the preliminary issue as being to determine: "whether the Claimant was, at the relevant time, a disabled person within the meaning of the Disability Discrimination Act 1995." The relevant date was assumed to be the date of dismissal, 7 September 2005. The Claimant's case pleaded case was: "The Claimant has also suffered two sickness absences following knee injuries. Without medical treatment to the two knee injuries the Claimant would have suffered significant and continuing mobility problems in particular. The Claimant believes that she is a disabled person within the meaning of the Disability Discrimination Act." Her case before the Tribunal was recorded as being "that the cause of her absence in August 2005 was a knee condition amounting to a disability and accordingly there is a causal link between the disability and dismissal which results in her having a claim for disability discrimination." She abandoned an allegation that another condition, hives, amounted to a disability.

The statutory provisions

5. The relevant provisions of the Act are:

Section 1(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 affect on his ability to carry out normal day-to-day activities."

Schedule 1 paragraph 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) 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."

Schedule 2 paragraph 5:

"(1) The effect of an impairment is a long-term effect if it has lasted at least 12 months. (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 recurs."

6. Paragraph B5 of the Statutory Guidance issued under section 3 of the Act (as that guidance existed at 1 May 2006) provided in relation to a recurrence: "Likelihood of recurrence should be considered taking all the circumstances of the case into account…"
7. Paragraph B7 provided: "It is likely that an event will happen if it is more probable than not that it will happen."

The Tribunal decision

8. The Tribunal was first concerned with an issue as to whether in the 2002 incident the Claimant had dislocated her left or her right patella. The hospital records were silent as to which knee had been injured and its task was not made any easier by the fact that the Claimant told the orthopaedic consultant who acted as single joint medical expert that she had dislocated her right, rather than her left, patella. Happily for her the occupational health notes, not seen by the orthopaedic consultant, made it plain that it was the left patella. The Tribunal then had to determine to whether in the 2005 incident her left patella had been dislocated at all (the medical records made no reference to any dislocation, only to bruising). It held that in the first incident she did dislocate her left patella and that the first incident severely affected and restricted her mobility for some weeks (she was off work for 9 weeks) but that she had made a complete recovery by the beginning of 2003. It then determined that in the 2005 incident she had again dislocated her left patella and concluded this passage of the judgment by saying "Accordingly I accept that the injury that occurred on 30 July was a recurrence of her earlier patella dislocation".
9. The Tribunal turned to the question of disability holding that "as a consequence of the injury on 30 July 2005 the Claimant did have a physical impairment which had substantial (in the sense of more than minor or trivial) adverse effect on her ability to carry out day-to-day activities" and noted the question was "whether that had a long term adverse effect." The Chairman referred to the orthopaedic consultant's report which stated "After only a single documented episode of dislocation, surgery to realign the patella mechanism is not indicated. However, there is a 10% chance of a further episode of subluxation and dislocation occurring in the future…" The Chairman continued "It follows that in my judgment that if the episode in July 2005 had been an isolated episode … it could not be said that it would be likely to recur and accordingly that the Claimant would fail in her assertion that she was a disabled person at that point. The question for me is what effect the earlier episode in 2002 has had upon that definition."
10. In order to answer that question the Chairman turned to Swift v Chief Constable of Wiltshire [2004] IRLR 540 and the four questions there posed by Judge Richardson. He dealt with the first three questions as follows:

"15. The first question is "Was there at some stage an impairment which had a substantial adverse effect on the Claimant's ability to carry out normal day-to-day activities. An impairment will have such an effect only if it effects one or more of the functions listed in paragraph 4.1 of the schedule?" As indicated above in my judgement the consequence of the first episode of dislocation of the patella was that there was an impairment in 2002 which had a substantial adverse effect on the Claimant's ability to carry out normal day-to-day activities.

16. Secondly, "Did the impairment cease to have a substantial adverse effect on the Claimant's ability to carry out normal day-to-day activities and if so, when?" As I indicated earlier in my judgement the Claimant had made a complete recovery from that earlier episode at the latest by Christmas or New Year of 2003 and accordingly in my judgement at the latest by that point any impairment had ceased.

17. Thirdly, "What was the substantial adverse effect?" For the reasons set out above the substantial adverse effect was the effect upon the Claimant's mobility and the extent to which the reduction in her mobility affected her ability to carry out ordinary day-to-day tasks."

11. There is no criticism of his approach or answers to the first three questions.
12. He then turned to the fourth question: "Is that substantial effect likely to recur?" and set out paragraphs 27 and parts of paragraphs 28 and 30 of Judge Richardson's judgment. He continued at paragraph 19 of his judgment:

"19. It is the Claimant's case that as at the date of her dismissal on 7 September 2005 that she was suffering from a present disability. In my judgement had the second episode on 30 July 2005 not occurred it would not have been possible for her to argue and indeed she does not argue that she should have been, on the basis of [the medical expert's] evidence, treated as having a recurring condition in that it was one that was likely to recur. However the fact of the matter is that it is a condition which in my judgment did recur. The question for me therefore is whether I can adopt the position of saying that although it did occur it was not likely to recur and therefore the Claimant does not fall within the provisions of Regulation 2(2); or alternatively whether I can take the fact that it did occur into account as part of the assessment of whether it was likely to recur."

20. It appears to me on the basis of paragraph 30 of the judgment in Swift which I have set out above that I am entitled to look at what in fact occurred and consider whether in those circumstances I consider that there was a likelihood that what did recur would recur. It appears to me that the position is that the Claimant fell within that category of people for whom there was an increased risk of a dislocation or subluxation of the patella and that in her case that risk eventuated. In my judgement the fact that it did recur is powerful evidence that it was likely to recur. It follows that in my judgement the Claimant does bring herself within Regulation 2(2) of Schedule 1 and that accordingly she has established that she was suffering from a present disability as at the date of her dismissal."

13. The Chairman then went on to make an alternative finding:

"21. I have gone on to consider the position if I am wrong about that. Schedule 2 to the Act relates to past disabilities and paragraph 5 of Schedule 2 sets out that (1) the effect of an impairment is a long term effect if it has lasted for at least 12 months; (2) where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-today activities it is to be treated as continuing to have that effect if that effect recurs.

22. It appears to me that even if I am wrong about the first proposition that the Claimant was presently disabled she falls squarely within the definition of having suffered a past disability in that the effect had in fact recurred and accordingly I would have found that the Claimant was suffering from a past disability had I not made my primary finding that the Claimant was suffering from a present disability."

The case for the Appellant/Respondent

14. The Respondent attacked this reasoning on a number of bases. The skeleton argument sought to identify six errors but some of them overlapped. It was submitted:

a. There was a finding that (i) there had been a complete recovery from the first dislocation (described as "that injury") by the beginning of 2003, (ii) by that point "any impairment had ceased", and (iii) there was "no recurrence of that injury until 30 July 2005". There were two separate and discreet incidents set three years apart and that in the interval the Claimant had made a full recovery, so that she no longer had any impairment. It followed that it could not be said that there was a long-term impairment.

b. The Chairman had concluded that, had the second incident not occurred, the Claimant could not have argued that her "condition" was one that was likely to recur. The Chairman was confusing the impairment with the effect of the impairment. The impairment had to continue throughout, whilst the recurrence of the effect was the critical issue. In this case the impairment was the dislocation and the effect was the effect on mobility. There was no recurrence of the dislocation: the two dislocations were discrete incidents.

c. There was no evidential basis on which it could be said that the effects of the 2005 incident constituted a recurrence of the substantial adverse effects of the 2002 dislocation.

d. If, on the proper construction of paragraph 2(2) of the First Schedule there was no necessity for the impairment to continue between the two incidents, the Chairman erred in holding that the substantive adverse effect was likely to recur. It was not what actually occurred but that which could earlier have been expected to occur which had to be judged. In this case the Tribunal had simply assumed because the second dislocation had occurred, it was likely to occur.

e. The Tribunal's alternative finding could not be supported because it is necessary for the impairment to continue between the initial occurrence and its recurrence and in this case it had not done so.

f. The Tribunal had not considered or decided whether the Claimant was disabled at the time of her dismissal.

The Claimant/Respondent's case

15. The essence of the Claimant's case was that the decision showed no error of law and that there was evidence on which the Tribunal was entitled to find as it did on the facts. The Claimant submitted:

a. As to "present disability", the Chairman was entitled to take into account that the 2005 episode did occur in deciding whether or not at the time of the earlier episode it was likely to occur. Paragraph 2 of schedule 1 of the Act deals with "long term effects" and paragraph 2(2) deals specifically with a recurring effect. The Chairman was clear in his judgment that he took the fact that the later episode occurred into account "as part of the assessment of whether it was likely to recur". It was not the only factor in his assessment. He also pointed out that the Claimant "fell within that category of people for whom there was an increased risk of a dislocation or subluxation of the patella". This was also a very important fact in the overall assessment of whether the effect was likely to recur.

b. Swift made a number of important points: (i) An adverse effect is "likely to recur" if it is more probable than not that it will recur. (ii) Whether a substantial effect is "likely to recur" is not necessarily determined by medical evidence although medical evidence is of high importance. (iii) Where the Tribunal is looking at events that occurred in the past the Tribunal is entitled to consider whether the substantial adverse effect did recur during the period. Such evidence is not conclusive: it is for the Tribunal to assess. (iv) The Tribunal need not be satisfied that the recurrence is likely to last at least twelve months. For present purposes the most important point was (iv). This made clear that in deciding whether or not an effect was likely to occur the Tribunal considered whether the effect did recur, but that the recurrence was not conclusive evidence that the effect was likely to recur. The Chairman's judgment in this case was express in stating that the fact of recurrence was part of the assessment. That is entirely consistent with Swift and was not an error of law.

c. The Respondent was incorrect in asserting that for the Claimant to be disabled as defined it was necessary for the Tribunal to find that the impairment continued between the two episodes even if the adverse effects did not. The requirement in section 1 is for the adverse effect to be long term, but there is no need for the impairment to be long term. "Long term" is a qualification on the requirement for there to be an effect on ability to carry out normal day-to-day activities, not on the requirement for a physical or mental impairment. If the Respondent's argument were correct Tribunals would become engaged in extremely difficult arguments about whether or not an "impairment" subsists during symptom free periods: eg whether someone with a bipolar affective disorder has an "impairment" during periods they may be symptom free.

d. The impairment was the dislocation of the left patella and the Tribunal's decision that there was a recurrence of the left patella dislocation was in accordance with evidence given by the Claimant and was consistent with the medical evidence. The issue of whether there was or was not a recurrence was not solely a matter for medical evidence. The Chairman was entitled to take into account all the evidence, including the Claimant's evidence, and to find as he did.

e. As to the past disability point, schedule 2 paragraph 5 provides:

(1) The effect of an impairment is a long-term effect if it has lasted for at least 12 months.

(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 recurs.

While paragraph 5(1) plainly did not apply in this case because the impairment did not last at least twelve months, the Chairman found that paragraph 5(2) applied because the effect had recurred. The Respondent's argument that it was necessary for the Chairman to find that the impairment continued between the two episodes even if the adverse effects did not was incorrect. There is no such requirement and the Chairman did not err in law.

f. The point that the Tribunal made no finding as to whether the Claimant was disabled at the date of her dismissal irrespective of whether she was at some other time was not taken before the Tribunal and was not open to the Respondent. It was in any event a bad point.

Discussion

16. A substantial part of the Respondent's arguments is founded on the assumption that the "impairment" that is relevant in this case is the dislocation of the patella, and indeed this was the impairment to which the Claimant's counsel made reference in her submissions. But this is not, it seems to me, the impairment which the Tribunal found that the Claimant suffered. The Tribunal found that the Claimant "fell within that category of people for whom there was an increased risk of a dislocation or subluxation of the patella and that in her case that risk eventuated". The impairment was her increased risk of dislocating her patella (ie the instability of her knee cap). When a dislocation occurred the impairment did have a substantial adverse effect on her ability to carry out normal day to day functions because (on the Tribunal's findings) it substantially affected her mobility. The fact that by the beginning of 2003 she had fully recovered from the first dislocation did not mean that she had ceased to have the impairment: she still had an increased risk of dislocating her patella and that increased risk remained with her throughout. If the Tribunal was entitled to hold that (i) the Claimant was a person who had an increased risk of dislocating her patella and (ii) that could in law amount to a physical impairment, then neither of the Claimant's points (a) and (b) can succeed.
17. This is not, in my view, a case in which it can be said that the impairment ceased to exist. It is not therefore the sort of case envisaged by Judge Richardson at paragraph 34 of Swift where an illness has run its course but left behind a substantial adverse effect which might recur without the illness recurring. The Tribunal might have used more precise language at paragraph 16 of its decision when it said that "at the latest by that point [ie New Year 2003] any impairment had ceased." It was referring back to its earlier finding at paragraph 6: "… it is likely that she had made a complete recovery from that injury by approximately the new year of 2003." More accurately the Tribunal should have said at paragraph 16 "any effect of the impairment had ceased." Had it done so, the Respondent would not have been able to argue these points as forcibly as it did.
18. As to point (c), there was little in the way of evidence as to whether the Claimant was a person for whom there was an increased risk of a dislocation of the patella. The medical expert did not deal expressly with the point. He limited himself in an answer to a question on his report to pointing out the obvious: that if the first injury had been to the right knee (as the Claimant had inaccurately told him) and the second to the left, the second injury could be said to be a recurrence of the first. His report hinted that she was not such a person because he said: "In other words I believe that there is currently a 90% probability that Mrs Scott will not require any further orthopaedic intervention." But that has to be read against the background that he was under the impression (contrary to the finding of fact by the Tribunal) that there had been only one dislocation, and that had been to the right knee.
19. The Chairman took account of the evidence of the orthopaedic consultant and his opinion (on the basis that there had been only a single dislocation) that there was "currently [ie on the date of his letter of 13 March 2007, referring back to his report of 8 August 2006] a ninety per cent probability that the Claimant would not require any further orthopaedic intervention", but he also took account of what had in fact happened to the Claimant in suffering two dislocations of the same patella. In so doing he was relying, as he was entitled to do, on events as they had unfolded. He was not bound to base his judgment on the material contained in the medical report. In this case, because of the confused and inaccurate information given to the expert, it was of less value than might otherwise have been the case and he found the evidence of what in fact occurred "powerful".
20. It was common ground that he was entitled to have regard to the evidence of everything that had happened up to the date of the hearing: see Swift, European Welfare Lifestyles Ltd v Crossingham UKEAT/0197/06, and McDougall v Richmond Adult Community College UKEAT/0589/06. He did not fall into the error of regarding the subsequent dislocation as conclusive. In my judgment there was evidence in the form of the later dislocation on the basis of which the Chairman was entitled to hold that the Claimant was a person suffering from an impairment, namely the greater likelihood of a dislocation of her patella. The Tribunal was entitled to hold that there was a further manifestation of this impairment in the form of the later dislocation. The findings which the Chairman made, based on two dislocations of the same knee (in each case arising in circumstances where it would not be expected that a dislocation would occur), were findings the Chairman was entitled to make.
21. The question the Tribunal then had to answer, given that the impairment had no substantial effects over the period 2003 to July 2005 and had not lasted for at least 12 months on either occasion when it manifested itself, was whether it was to be treated as continuing to have a substantial adverse effect. It was this question which the Respondent addressed at point (d). In my judgment the argument proceeded from a false premise because it was concerned with demonstrating that the further dislocation could not be expected to occur at the time the second dislocation took place. The material date for determining whether or not the Claimant was disabled was the date of discrimination (ie "the date of the statutory tort" to use the phrase used by Judge McMullen QC, in the McDougall case at paragraph 34) and it was at this date that the Tribunal had to consider whether or not she was disabled. By this date the Claimant had suffered two dislocations which had a substantial effect on her ability to carry out normal day-to-day activities. It was open to the Tribunal on this basis to form the view that it was more likely than not that she would suffer further dislocations with such effects. In fact the Tribunal went further than this in that it held that in the light of the fact that she suffered the further dislocation, it was more likely than not that she would suffer a further dislocation even before the second dislocation occurred. This, despite the forceful argument on behalf of the Respondent, was a view which the Tribunal was entitled to take.
22. The Respondent's point (e) is raised in connection with the Tribunal's alternative finding that even if the Claimant was not suffering from a present disability at the date of her dismissal, she was to be treated as disabled under the "past disability" provisions of the Act. The Tribunal found there was a continuing impairment even though the substantial adverse effect did not. Even assuming that the Tribunal had not so found, but instead had found that (a) there was no continuing impairment between the start of 2003 and July 2005, (b) there were no continuing substantial adverse effects and (c) a recurrence was not more likely than not, there was a recurrence of the impairment at the time of the second dislocation. By schedule 2 paragraph 5 the impairment was to be treated as continuing to have a substantial adverse effect (and so long term) because the effects in fact recurred. So long as there was still a continuing adverse effect at the date of the dismissal, she was to be treated as disabled for the purposes of the Act. If there were no continuing substantial adverse effects at that date, the question would again have been whether there was a probability of the recurrence of a substantial adverse effect. The Tribunal found there was such a probability.
23. The availability of point (f) was a matter of dispute between the parties. On behalf of the Claimant it was said that it was never pleaded before the Tribunal that the Claimant did not have an impairment which had a substantial effect at the date of the dismissal and the issue was as to whether it was long term. On behalf of the Respondent it was said that the point was in issue and the Tribunal failed to make any finding on the point. The only relevant passage in the judgment, having dealt with the increased risk of subluxation, was "It follows that in my judgement the Claimant does bring herself within Regulation 2(2) of Schedule 1 and that accordingly she has established that she was suffering from a present disability as at the date of her dismissal." It was said that this contained no finding of whether at the time of dismissal the disability was likely to recur.
24. In my judgment the point must have been in issue before the Tribunal. The Claimant was dismissed after she returned to work. I find it very difficult to accept that the question whether she was still suffering from a substantial effect was not raised. However it seems to me that the Chairman dealt with the point. He was concerned with the question whether a recurrence of the adverse substantial adverse effect was more likely than not to occur. He had dealt with the issue of whether it was more likely than not that what did recur would recur. He went on to find that she was disabled at the date of dismissal, from which it seems to me clear that he was holding she was disabled because a further recurrence was likely.

Conclusion

25. It follows that none of the grounds of appeal argued succeed and the appeal must be dismissed.