United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS CATHERINE CASSERLEY (of Counsel) Instructed by: Equality & Human Rights Commission Legal Services 2nd Floor, Arndale House The Arndale Centre Manchester M3 3AQ
For the Respondents	MISS JOANNE CONNOLLY (of Counsel) Instructed by: Oldham Metropolitan Borough Council Legal & Democratic Services Civic Centre PO Box 33 West Street Oldham OL1 1UH

SUMMARY

DISABILITY DISCRIMINATION

Disability

In determining whether the effects of an impairment are long term for the purposes of Schedule 1 paragraph 2 (1)(a) and (b) of the Disability Discrimination Act 1975 the duration of effects of a condition which is likely to develop or has developed from a different condition may be aggregated with the duration of the effects of the original condition.


 


THE HONOURABLE MRS JUSTICE SLADE DBE:

1. This is an appeal from the judgment of an Employment Judge ('EJ') entered in the Register on 9 March 2009. The EJ concluded that the Appellant was not a disabled person within the meaning of the Disability Discrimination Act 1995 ('DDA'). The issue before the EJ which gives rise to the issue which Bean J permitted to proceed to a full hearing is:

"whether the effect of two different impairments over two periods amounting together to 12 months or more can be considered to constitute a substantial and long term adverse effect within the meaning of the DDA Schedule 1 paragraph 2."

2. By letter dated 7 October 2009 the Appellant sought to amend the ground of appeal to proceed to a full hearing by adding the following:

"Further and/or in the alternative, the Tribunal erred in law in holding that the two medical conditions that the Appellant had – low grade myelitis and a secondary myofacial pain syndrome – did not constitute the same impairment and thus that its effects, taken together, were sufficient to meet the requirements of Schedule 1 paragraph 2(1) (long term)."

Permission to make this amendment was refused. Accordingly this appeal must proceed on the basis that the impairments are low grade myelitis and myofacial pain syndrome. With the typographical amendments made at the outset of the hearing before me the grounds to be considered on this appeal are:

'6.2.1 It is submitted that Tribunal misdirected itself in law in not considering the combined effects of two different conditions for the purposes of Sch 1 s2(1)(a) of the Act and /or not finding that the two conditions when combined met the condition set out at Sch 1 s2(1)(a) of the Act.

6.2.2 It would appear the conclusion of the Tribunal with particular reference to paragraph 16, is that the two periods of physical problems caused by different medical conditions could not be combined for the purpose of Sch 1 s2(1)(a) of the Act. The tribunal has misdirected itself in law not considering the effects of the two conditions together. This appeal raises an important point of law in respect of the interpretation of s.1 of the Act: The application of the law to a situation where two medical conditions while each separately lasting less than 12 months cumulatively do last at least 12 months.'

Thus the issue on appeal is whether two different impairments can be aggregated for the purpose of DDA Schedule 1 paragraph 2(1). Paragraph 31 of the skeleton argument lodged on behalf of the Appellant states:

'In this case, it is clear that the Appellant experienced pain as a result of the two medical conditions that she had – the pain itself could have been classified as the impairment, rather than necessarily the medical conditions that she had, had a fully functional approach been taken to the definition.'

However by reason of the ground on which it was permitted to proceed to a full hearing, this appeal does not give rise to consideration of whether pain is an impairment or whether and if so in what circumstances two different medical conditions can be treated as the same impairment.

3. The relevant facts may be briefly summarised as follows. The Appellant was a teacher at the Respondent's primary school. Her employment commenced on 4 January 2005. The EJ found that the Appellant suffered a mild myelitis (inflammation of the spinal cord) between February 2005 and December 2005. This affected her groin and left leg. During this time she had three periods of absence from work of 28, 18 and 66 days. By January 2006 she had developed a secondary myofacial pain syndrome (painful muscular trigger points, 'MPS'). This affected the left groin and upper leg. The Appellant had a second phased return to work from November 2005 and by July 2006 she was working full time. Unfortunately in September 2006 the Appellant suffered an injury while restraining a pupil at a swimming lesson. She developed pain in the left shoulder and neck and the pain in her left groin and leg deteriorated. The Appellant was absent from work from 5 October 2006 for 141 days until her dismissal by reason of capability. Her employment terminated on 30 April 2007.

Conclusions of the Employment Judge

4. The EJ at paragraph 10 of her judgment accepted the evidence of Dr Eastwood, the jointly instructed medical expert, that the 'low grade myelitis… (suffered by the Claimant) had gone on to develop a secondary myofacial pain syndrome' from January 2006. She accepted Dr Eastwood's evidence that there was no point at which a treating clinician would say that the myofacial pain syndrome was likely to last more than twelve months.
5. As is recorded in paragraph 16 of her judgment, the EJ accepted Miss Connolly's submission on behalf of the Respondent that:

'Mr Culshaw [for the Claimant] was confusing 'impairment' with 'the symptoms of impairment' and that this was not permitted by section 1 of the Act. Mr Culshaw thought that there were authorities on this point but could not cite any. Miss Connolly said that she had looked for authorities and could not find any. In the circumstances, I accept Miss Connolly's submission that there were two periods when the claimant suffered from a physical impairment which on her own evidence had a substantial adverse impact on her ability to carry out normal day-to-day activities but did not last for at least twelve months or could not be said to have been 'likely' to have lasted for at least twelve months.'

At paragraph 19 the EJ held:

'While, [I] like the respondent, and Dr Eastwood I see no reason not to believe the claimant about the extent and impact of the pain she suffered and continues to suffer, I cannot conclude that she qualifies as a person under section 1 Schedule 1 of the DDA as the burden is on the claimant to prove that she comes within the Act, she has failed to do so and I find the Tribunal does not have jurisdiction to hear her complaint of disability discrimination. This aspect of her claim is dismissed.'

Relevant statutory provisions and Guidance

6. DDA Section 1:

'1.— Meaning of "disability" and "disabled person".

(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.

(2) In this Act "disabled person" means a person who has a disability.'

Section 3:

'(A1) The Secretary of State may issue guidance about matters to be taken into account in determining whether a person is a disabled person.

Without prejudice to the generality of subsection (A1), the Secretary of State may, in particular, issue guidance about matters to be taken into account in determining-

whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities; or

whether such an impairment has a long-term effect.'

Guidance issued by the Secretary of State under this provision is referred to in this judgment as 'Guidance'.

Schedule 1 paragraph 2:

'(1) The effect of an impairment is a long-term effect if—

(a) if 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.'

Guidance issued by the Secretary of State.

'A4. Whether a person is disabled for the purposes of the Act is generally determined by reference to the effect that an impairment has on that person's ability to carry out normal day-to-day activities.'

'B6. A person may have more than one impairment, any one of which alone would not have a substantial effect. In such a case account should be taken of whether the impairments together have a substantial effect overall on the person's ability to carry out normal day-to-day activities. For example, a minor impairment which affects physical co-ordination and an irreversible but minor injury to a leg which affects mobility, when taken together, might have a substantial effect on the person's ability to carry out certain normal day-to-day activities.'

The contentions of the parties

7. Miss Casserley on behalf of the Appellant contended that disability and impairment in the DDA should be construed purposively. She pointed out that there is clear authority for considering the effects of more than one impairment together for the purpose of determining whether an impairment has a substantial adverse effect upon a Claimant's normal day-to-day activities. In that regard she referred to Ministry of Defence v Hay [2008] 1CR 1247 as an example of an Employment Tribunal aggregating a variety of impairments to determine whether taken together the impairments had a substantial effect upon the Claimant's day-to-day activities. There was no appeal on this point. However the aggregation of contemporaneous impairments for the purpose of considering whether an impairment had a substantial adverse effect on day-to-day activities was considered in Mrs Ginn v Tesco Stores Ltd UKEAT/0197/05. In that case the Claimant suffered from two conditions, vertigo and rhinitis. The Employment Appeal Tribunal ('EAT') referred to paragraph A6 of the Guidance now contained in reissued paragraph B6. It held in paragraph 21 of its judgment that in assessing whether an impairment had a substantial effect on a person's ability to carry out day to day activities where there was more than one impairment the correct approach was to 'add up the component parts and see whether it amounts to more than individual parts taken separately'.
8. Miss Casserley contended that it would be perverse if several impairments experienced concurrently could be aggregated to determine whether an impairment had a substantial adverse effect but consecutive impairments could not be taken together in determining the length of time the adverse effect of an impairment was suffered.
9. Miss Casserley acknowledged that in this case it was not contended that pain was an impairment. She recognised that unrelated consecutive impairments could not be taken together to determine the duration of an impairment. However, where one impairment arises from another they can both be taken into account. Whether they are related and are so to be taken into account is a question of fact. Miss Casserley acknowledged that if she were to succeed in her appeal that the duration of consecutive but different impairments could be added together to determine whether the effects of the impairments had continued for 12 months, the case would have to be remitted to the EJ for necessary findings of fact to be made.
10. Reference was made by Miss Casserley to McNicol v Balfour Beatty Rent Maintenance Ltd [2002] ICR 4198 in which Mummery LJ at paragraph 18 endorsed observations of Lindsay J in College of Ripon & York St John v Hobbs [2002] IRLR 185 at paragraph 32:

'Nor does anything in the Act or the Guidance expressly require that the primary task of the ascertainment of the presence or absence of physical impairment has to, or is likely to, involve any distinctions, scrupulously to be observed, between an underlying fault, shortcoming or defect of or in the body on the one hand and evidence of the manifestations or effects thereof on the other. The Act contemplates (certainly in relation to mental impairment) that an impairment can be something that results from an illness as opposed to itself being the illness - Schedule 1 para 1 (1). It can thus be cause or effect. No rigid distinction seems to be insisted on and the blurring which occurs in ordinary usage would seem to be something the Act is prepared to tolerate. Nor is there anything there to be found to restrict the Tribunal's ability, so familiar to Tribunals in other parts of discrimination law, to draw inferences…'

11. Miss Connolly on behalf of the Respondent cautioned against having regard to the cause of impairments for the purpose of determining whether the periods of impairment could, as a matter of law, be aggregated for the purpose of deciding whether their effects were long-term. She pointed out that in this case the impairments were the medical conditions and that the cause of those impairments was not relevant. The issue in this appeal was whether the impairments were long-term. She agreed with Miss Casserley that the singular 'impairment' in the DDA can be read as plural 'impairments'. However there is nothing in Schedule 1 paragraph 2(1), the Guidance or the authorities to support the contention that the effects of related impairments can be aggregated consecutively to satisfy the criterion of 12 months duration to establish that the effects of the impairments were long term. Far from supporting the Appellant's contentions, she said that the approach of the EAT in paragraph 18 of Ginn demonstrates that for the purpose of determining whether the effects of two different impairments can be aggregated in considering whether they are long-term it is irrelevant whether the impairments are related.

Discussion

12. The grounds on which this appeal has proceeded to a full hearing do not permit me to consider the argument on duration of the effects of the Appellant's impairments on the basis that the two impairments should be considered as one. It may be that in another case two closely related sequential impairments, myelitis and myofascial pain syndrome may be regarded as one impairment and its duration calculated accordingly. However I consider this appeal on the basis that the Appellant suffered from two different consecutive impairments.
13. McNicol and College of Ripon make it clear that its cause is not relevant to the establishing of an impairment. However the language of DDA Section 1(1) and Schedule 1 paragraph 2(1) and (2) requires the establishment of a causative link between an impairment and its effect. Paragraph A2 of the Guidance explains that:

'the impairment must have adverse effects which are substantial.'

The necessary link between an impairment and its effects is also illustrated by McGinn. The Claimant had two impairments, vertigo and rhinitis. Taking the two conditions together their effect on the Claimant's ability to carry out day-to-day activities was substantial. On its own vertigo had such an effect but rhinitis did not. If there were no need to establish a causative link between the impairments and their effects there would have been no need for the EAT to determine whether the effects of rhinitis could be considered together with vertigo to assess whether its adverse effects were substantial.

14. The issue of whether the effect of an impairment is long-term may be determined retrospectively under Schedule 1 paragraph 2(1)(a) or prospectively under 2(1)(b). It will no doubt be necessary in most if not all cases falling within Schedule 1 paragraph 2(1)(b) that a diagnosis will have to be given in order to obtain a prognosis of the likely duration of the effects of an impairment. Such a diagnosis may include an assessment of whether the impairment, in this case myelitis, is likely to lead to the development of another condition which itself give rise to adverse effects to the statutory threshold.
15. There is no authority on the question of whether the duration of the effects of an impairment which is likely to develop or has developed from a different impairment can be aggregated with the duration of the adverse effects of that impairment. The Court of Appeal in McNicol approved the dictum of Lindsay J in College of Ripon & York St John recognising the blurring of distinctions in the DDA between an underlying fault or medical condition and its manifestations. So too in my judgment fine distinctions between one medical condition and its development into another are to be avoided. I adopt the observation of Mummery LJ in McNicol at paragraph 19:

'It is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment with the stated effects.'

Thus in my judgment the effect of an illness or condition likely to develop or which has developed from another illness or condition forms part of the assessment of whether the effect of the original impairment is likely to last or has lasted at least 12 months.

16. The EJ erred in failing to consider whether the Appellant's secondary myofascial pain syndrome had developed from her myelitis in determining whether the duration of the effects of these two different impairments were to be aggregated for the purposes of DDA Schedule 1 paragraph 2(1)(a) in order to decide whether they were long-term.
17. Accordingly the appeal is allowed. The case is remitted to the same employment judge or, if not practicable, to an employment judge selected by the Regional Chairman to determine whether in accordance with the terms of this judgment the effects of the myelitis were long-term within the meaning of DDA Schedule 1 paragraph 2(1)(a). The EJ will decide on relevant evidence whether the Appellant's secondary myofascial pain syndrome had developed from myelitis and if so whether in the light of that conclusion the effects of the first impairment to the statutory threshold had lasted for at least 12 months.