United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0031/12/SM

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

 

 

At the Tribunal

On 21 June 2012

Judgment handed down on 30 October 2012

 

 

 

Before

THE HONOURABLE MRS JUSTICE SLADE DBE

SIR ALISTAIR GRAHAM KBE

MR D J JENKINS OBE

 

 

 

 

SUSSEX PARTNERSHIP NHS FOUNDATION TRUST APPELLANT

 

 

 

 

 

 

MISS T NORRIS RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MISS ABIGAIL COHEN (of Counsel) Instructed by: Brachers LLP Solicitors Somerfield House 59 London Road Maidstone Kent ME16 8JH
For the Respondent	No appearance or representation by or on behalf of the Respondent

 

 

 

SUMMARY

DISABILITY DISCRIMINATION – Disability

 

The effect of an impairment may be direct or indirect.  However, the majority of the Employment Tribunal erred in holding that the deduced effect of the Claimant’s impairment for the purpose of Equality Act 2010 Schedule 1 Part 1 paragraph 5 was substantial and adverse to her ability to carry out day- to- day activities when the evidence established that the impairment, Selective IgA, caused an increase in susceptibility to infection but did not support a conclusion that increased rate of infection had such an effect.  Further the evidence did not support the conclusion of the majority of the ET that substantial adverse effects caused by the impairment in the past were likely to recur.

Swift v Chief Constable of Wiltshire Constabulary [2004] IRLR 540 considered.

 

Appeal allowed. Decision of the Employment Tribunal that the Claimant was a disabled person at the material time, October 2010, set aside. The issue of whether the Claimant was a disabled person at the material time, remitted for re-hearing before a differently constituted Employment Tribunal.

 

 

 

 

 

THE HONOURABLE MRS JUSTICE SLADE DBE

 

1.                  Sussex Partnership NHS Foundation Trust appeal from the majority decision of an Employment Tribunal (‘ET’) in a judgment sent to the parties on 24 October 2011 (‘the judgment’) that Miss Norris is a disabled person within the meaning of the Equality Act 2010 (‘EqA’) section 6(2) applying Schedule 1 Part 1 paragraphs 2(2) and 5.  The parties will be referred to by their titles before the ET as Claimant and Respondent.  References to paragraphs below are to the judgment unless otherwise indicated.

 

2.                  The issue of whether at the material time the Claimant was a disabled person within the meaning of the EqA arose in proceedings brought by her in which she alleged that an offer made by the Respondent in a letter dated 8 October 2010 of a position as Team Administrative Co-ordinator conditional on satisfactory references and checks was withdrawn by letter dated 18 October 2010 because one of her referees referred to her disability. The Claimant had previously been employed by the Respondent. That employment had come to an end on 25 July 2010.

 

3.                  The Claimant has been diagnosed with Selective IgA Deficiency (‘Selective IgA’).  The Respondent agreed that the Claimant has a physical impairment within the meaning of EqA section 6(1)(a) but denied that she was a disabled person within the meaning of that Act.

 

4.                  Two grounds of appeal were advanced by Miss Cohen on behalf of the Respondent.  Ground 1 is that the majority of the ET erred in law and reached a perverse conclusion in finding that the deduced effect of the impairment disregarding medical treatment as provided in EqA Schedule 1 paragraph 5 was that at the relevant time, October 2010, it had a substantial adverse effect on her ability to carry out normal day-to-day activities.  The majority misdirected themselves in being over influenced by the opinion of Professor Grimbacher rather than reaching their own conclusion on all the evidence.  In ground 2 it is asserted that the majority of the ET erred in law and came to a perverse conclusion in holding that the substantial adverse effect caused by the impairment, which ceased in November 2007, was likely to recur.  Therefore applying EqA Schedule 1 paragraph 2(2), the majority erroneously decided that the impairment should be treated as continuing to have that effect at the material time.

 

5.                  The Claimant did not appear and was not represented before us.  She lodged an Answer and Cross-Appeal.  By letter dated 7 March 2012 the Claimant was informed by the EAT that HH Jeffrey Burke QC had considered her Cross-Appeal in accordance with rule 3(7) of the Employment Appeal Tribunal Rules and was of the opinion that it disclosed no reasonable grounds.  Nor would she be permitted to put forward new evidence unless there was a successful application to do so.  The Claimant lodged an eleven page skeleton argument which we have considered together with her Answer and Cross-Appeal insofar as they are relevant to her resistance to the Respondent’s appeal.  The arguments in those documents are to the effect that the majority of the ET did not err in concluding that the Claimant was a disabled person within the meaning of the EqA.

 

The relevant statutory provisions

6.                  Equality Act 2010:

 

“Section 6:

(1) A person (P) has a disability if:-

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

(5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).

(6) Schedule 1 (disability supplementary provisions) has effect.

Schedule 1 Part 1 – Long term effects:

2(1) The effect of an impairment is long-term if-

(a) It has lasted for at least 12 months,

(b) It is likely to last for at least 12 months, or

(c) It is likely to last for the rest of the life of the person affected.

(2) If 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.

5(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if:

(a) measures are being taken to treat or correct it, and

(b) but for that, it would be likely to have that effect.

(2)‘Measures’ includes, in particular, medical treatment…

Guidance:

Meaning of ‘substantial adverse effect’:

B1. The requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people.  A substantial effect is one that is greater than the effect which would be produced by the sort of physical or mental conditions experienced by many people which have only ‘minor’ or ‘trivial’ effects (this is stated in the Act at s212(1).

Meaning of ‘normal day-to-day activities’:

D2. …In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking or travelling by various forms of transport and taking part in social activities.”

 

The judgment of the ET: findings relevant to the Appeal

7.                  The Respondent agreed that the Claimant has a physical impairment within the meaning of EqA section 6(1)(a) but denied that she is a disabled person within the meaning of the Act.

 

8.                  It was not in dispute that the Claimant was diagnosed with Selective IgA in 1997.  Selective IgA is a defect of the immune system.  The usual symptoms of this condition are that people may suffer from recurrent diarrhoea and upper respiratory infections.

 

9.                  The Claimant, who was unrepresented, gave evidence to the ET and produced documents including a report dated 29 March 2011 from Professor B Grimbacher, Professor in Clinical Immunology at the Royal Free Hospital, in which he gave answers to numbered questions put to him.  The Respondent did not call any witnesses.

 

10.              The Claimant worked for the Respondent from April 1995 until 25 July 2010.  In that month she applied for the job of Team Administrative Co-ordinator.  The Respondent’s withdrawal by letter dated 18 October 2010 of the initial offer of that job by letter dated 8 October 2010 gave rise to her claim.

 

11.              The Claimant had occasional periods of sickness absence.  The worst periods of sickness occurred between December 2006 and November 2007.  The ET held:

 

“24. During the three and a half month period between July/August 2007 to November 2007 the Claimant was unable to function fully on a day-to-day basis.  She was unable to get out of bed for several days at a time because she felt unwell and fatigued.  She was unable to go shopping and was unable to do very much house work such as cleaning and vacuuming.

25. During the period from July 2010 to the end of October 2010, following the Claimant’s resignation she had two bouts of diarrhoea and visited her GP.  From beginning of August 2010 to mid September 2010 the Claimant went on holiday to New Zealand for approximately six weeks and during her trip she had a chest infection at the beginning of September 2010.  For both the diarrhoea and the chest infection the Claimant used antibiotics.  At that time the Claimant always kept a spare course of antibiotics so that she could use these should she get an infection.

27. The Claimant was fit to work from the date of her resignation on 25^th July 2010 to the end of October 2010.”

 

12.              The ET considered whether the Claimant’s impairment had long-term adverse effects on her ability to carry out day to day activities at the relevant time.  They held:

 

“35. In answer to a question from us as to the last time the Claimant suffered chronic fatigue up until October 2010 the Claimant could not recall.  However, in her first witness statement (C1) she stated that during the period from May 2008 to July 2010 there were times when she felt she had no other choice than to take sick days, and this was at the point when she was experiencing multiple symptoms, for example, an infection and fatigue.

36. The Claimant’s evidence was not able to demonstrate that her impairment had an adverse effect on normal day-to-day activities during the relevant period up to October 2010.  Both the Claimant and Professor Grimbacher agree that Selective IgA does not itself have any effect on the Claimant’s ability to carry out normal day-to-day activities.  We therefore, find the Claimant’s impairment did not have either an adverse effect, or a substantial adverse effect, on her ability to carry out normal day-to-day activities at the relevant time.”

 

13.              The ET therefore went on to consider, applying EqA Schedule 1, Part 1  paragraph 5, whether the Claimant’s impairment was to be treated as having a substantial adverse effect on her ability to carry out normal day-to-day activities if, but for relevant medication,  it would have that effect (the deduced effect).

 

14.              In relation to the deduced effect of the Claimant’s impairment, which is the subject of ground 1 of the Notice of Appeal, in answer to Question 6 ‘What affects does the impairment actually have now? (I would have if the claimant was not taking medication etc)’ (sic) Professor Grimbacher  answered:

 

“32. ……

‘On the Claimant’s capacity to carry out the normal day-to-day activities, selective IgA deficiency does not have any effect….It is important to note the selective IgA deficiency renders patients susceptible to recurrent infections, hence during the time of infections, patients’ ability to work is obviously severely impaired and results in sick leave, however, when infections are controlled and especially during summer months when infections are less prevalent, there is no detectable impairment of patients with this immune dyscrasia.’”

 

15.              The ET found that:

 

“26. The Claimant is prescribed medication related to her Selective IgA.  From the end of March 2011 (which is after the relevant period ended in October 2010) she was prescribed a prophylactic antibiotic which she now takes everyday to help prevent her get (sic) infections.  She is prescribed Fexofenadine 180 mgs which is a very strong antihistamine which she takes everyday.  She has been taking this for ten years.  She is prescribed Citalopram 10 mg everyday.  She stopped taking Citalopram for a period but started taking it again from December 2010 (after the relevant period).  In January 2010 she started a trial in relation to a Vitamin B12 injection.  The trial is to determine the best frequency.  Initially she had the injections every week, then every month for six months and now it is every three months for a year.  The Claimant’s regime will next be considered in November 2011.  The Claimant is also prescribed Nasonex nasal spray which she has taken everyday for the last three years.  The Claimant told us that the above medication, excluding the Citalopram are the relevant medications for keeping her well as a result of her Selective IgA.

…….

38. The relevant medication taken by the Claimant for the Selective IgA at the relevant time included Fexofenadine, a Vitamin B12 injection and Nasenex nasal spray.  In addition, when the Claimant suffered from an infection she normally took antibiotics.”

 

16.              The majority view of the lay members was:

 

“42…..that if the medication is disregarded the claimant would be more susceptible to infection because of her impairment of Selective IgA, and she would be less able to recover than someone who did not have that impairment.  Moreover, the claimant’s impairment makes her more prone to infection and there is a cause and effect relationship between the claimant’s impairment of Selective IgA and her infection.  Further, if medical treatment is disregarded then infections are more likely to occur which will then result in a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities, namely getting to work, shopping, housekeeping and walking.  The majority rely on Professor Grimbacher’s answer to Question 6, the relevant parts of which we have quoted above in our Reasons, and in particular Professor Grimbacher’s comment that Selective IgA renders people more ‘…susceptible to recurrent infections ….’, and that during the time of such infections the claimant’s ‘…. ability to work is obviously severely impaired and results in sick leave….”

 

17.              The minority view of the Employment Judge was:

 

“43 ….that, if the claimant’s medication is disregarded then it is ‘likely’ (using the interpretation in the Boyle case that it ‘could well happen’), the claimant will be prone to infections.  However, the claimant gave unconvincing evidence when she was asked on several occasions how, when she had an infection, this affected her normal day-to-day activities.  The claimant told us when she had an infection she had sometimes, but not usually, taken time off work and that she felt fatigued, but she was not able to tell us of any occasion after November 2007 when she was unable, for example, to go shopping or do the housework.  Moreover, the claimant has had infections on various occasions since November 2007 but was unable to recall any occasion when the effects were similar to the period between August 2007 and November 2007.  The minority considered the examples given in the Appendix to the Guidance as to when it would be reasonable to regard factors as having a substantial adverse effect on normal day-to-day activities.  The minority finds the claimant has not shown between November 2007 to October 2010 that, if her medication was disregarded, it would be likely there was a substantial adverse affect (sic) on her ability to carry out normal day-to-day activities.”

 

18.              The ET then considered whether the effects of the Claimant’s impairment were long term.  In paragraph 45 the ET directed themselves that the issue is whether the effect of an impairment is long-term and not whether the impairment is long term.  The ET unanimously found in paragraph 45 that the effect of the Claimant’s impairment was not long-term within the meaning of paragraph 2(1), Part 1 of Schedule 1 EqA.

 

19.              The ET then considered whether at some stage there was an impairment which had a substantial adverse effect on the Claimant’s ability to carry out normal day-to-day activities.  In paragraph 46 the ET held that during the period July/August 2007 to November 2007 the Claimant had an impairment which had a substantial adverse effect on her ability to carry out normal day-to-day activities.  The impairment ceased to have a substantial adverse effect in November 2007.  As the effects did not fall within EqA Schedule 1 Part 1 paragraph 2(1), the ET considered whether they were likely to recur and so fell within paragraph 2(2).

 

20.              Professor Grimbacher was asked in Question 10 ‘If the impairment has in the past had but has ceased to have a substantial adverse effect on the Claimant’s capacity to carry out normal day-to-day activities, is that effect likely to recur?’ The ET recorded in paragraph 39 that he answered:

 

‘It is indeed correct that the selective IgA deficiency had in the past led to a long period of sick leave especially in the years 2007 to 2009 and I do not have to make the point that infections may occur again; however, with now a proactive management of infections in place and being on top of possible break through infections in Tina, that is unlikely to happen…The general prognosis of selective IgA deficiency is very good, if patient adhered to therapy, a normal life with a normal capability to work can be expected.  However, break though infections may always happen as infections also happen in completely healthy individuals with normal serum IgA levels.’”

 

21.              The ET observed in paragraph 48 that Professor Grimbacher’s answer to Question 10 does not appear to deal with the likelihood of recurrence of a substantial adverse effect but the likelihood of “breakthrough infections”.  Similarly, the ET had observed at paragraph 30 that a letter of 29 March 2010 from Dr Baxendale, a consultant immunologist, referred to disabling symptoms of recurrent infection but “does not deal with the effect on the claimant’s normal day-to-day activities”.

 

22.              The ET found at paragraph 49:

 

“…there is a likelihood of recurrence in relation to the claimant contracting infections and that this ‘could well happen’.  Although Professor Grimbacher refers to this being ‘unlikely to happen’ he then qualifies this initial statement by stating that the claimant will remain susceptible to infections in the future and that such infections ‘…may always happen as infections also happen in completely healthy individuals …’.”

 

23.              At paragraph 50 the ET noted that “Professor Grimbacher does not appear to deal with the question as to whether the substantial effect of the claimant’s impairment is likely to recur”.

 

24.              The lay member majority held at paragraph 51:

 

“…because Selective IgA is a life long condition and the Claimant has already had one period between July/August 2007 to November 2007, where there has been a substantial adverse effect on the Claimant’s abilities to carry out normal day-to-day activities, this is sufficient to meet the test that such a substantial adverse effect is likely to recur in the sense of it “could well happen”.

 

25.              The minority view of the Employment Judge was:

 

“52. …that because the claimant’s impairment of Selective IgA is a condition that the claimant was born with and will last for the rest of her life, the fact that the claimant (who was born on 12^th October 1967) has only adduced evidence in relation to one period of substantial adverse effect during her life of approximately 3 months from July/August 2007 to November 2007 is not sufficient in itself to show that a substantial adverse effect on the claimant’s abilities to carry out normal day-to-day activities ‘could well happen’.  Further, the evidence adduced by the claimant between November 2007 to October 2010 shows only that the claimant has had intermittent periods of short-term sickness mainly due to chest infections, diarrhoea and UTI.  At times this may well have caused the claimant fatigue, but the claimant has not adduced evidence to show a substantial adverse effect on normal day-to-day activities during this period.”

 

26.              By majority, therefore, the ET held that the Claimant was a disabled person within the meaning of EqA section 6(2) and Part 1 of Schedule 1.

 

The submissions of the parties

27.              In support of ground 1 of the Notice of Appeal, Miss Cohen contended that the majority lay members erred in holding at paragraph 42 that “…if medical treatment is disregarded then infections are more likely to occur which will then result in a substantial adverse effect on the Claimant’s ability to carry out normal day-to-day activities, namely getting to work, shopping, housekeeping and walking”.  Accordingly the deduced effect of the impairment without medical treatment provided for in EqA Schedule 1 Part 1 paragraph 5 was that it had a substantial adverse effect on her ability to carry out day-to-day activities.

 

28.              Miss Cohen contended that the ET failed to apply Goodwin v The Patent Office [1999] IRLR 4 and EqA Schedule 1 paragraph 5 in that they considered whether suffering an infection because of increased susceptibility had an adverse effect rather than considering whether the increased susceptibility to infection itself had a substantial adverse effect on the Claimant’s ability to carry out day-to-day activities.  Miss Cohen submitted that the conclusion of the majority that the Claimant would suffer substantial adverse effects if she were more prone to infections was not supported by the evidence and was therefore perverse.  The ET unanimously found that save for a three month period in 2007 the Claimant’s evidence as to the effects which she suffers both when she is free from infection and when she has an infection did not demonstrate that her impairment had an adverse or substantial adverse effect on her ability to carry out day to day activities.  Nor did the Claimant’s evidence as a whole as to how she was affected by infections establish that since November 2007 these caused substantial adverse effects.  Further, Miss Cohen contended that the majority misdirected themselves by being over influenced by Professor Grimbacher’s response to Question 6 rather than reaching their own conclusions on all the evidence before them.

 

29.              As for ground 2 of the Appeal, Miss Cohen contended that the majority lay members misdirected themselves or reached a perverse conclusion in deciding that because Selective IgA is a life-long condition and the Claimant had one period between July/August 2007 to November 2007 when she had suffered a substantial adverse effect on her ability to carry out day-to-day activities, such an effect is likely to recur in the sense of it “could well happen”.  Miss Cohen contended that the evidence before the ET did not support the conclusion of the majority that the substantial adverse effects suffered in 2007 could well recur.  In his response to Question 10 Professor Grimbacher did not deal with this question.  Nor did the majority take any or any sufficient account of the evidence that the Claimant had only suffered one episode of substantial adverse effects of her impairment in the forty four years of her life.

 

30.              Miss Cohen invited us to adopt the approach and conclusion of the EJ and substitute a finding that the Claimant was not disabled and strike out the claim.

 

31.              The Claimant contended in paragraph 8 of her skeleton argument that without adhering to medical intervention she would continue to suffer repeated infections.

 

“…which are more likely to have a cumulative detrimental effect on my ability to function at a normal level on a day-to-day basis, and which past experience has shown (August 2007 – November 2007) can have an extremely debilitating effect on my overall level of functioning.  Evidence has suggested that this particular three month period of extremely adverse ill-health in 2007 occurred due to a cumulative series of infections which overwhelmed my immune system, and therefore I now have a proactive treatment plan in place to attempt to prevent such circumstances from occurring again.”

 

32.              As for whether the Claimant’s impairment has a substantial adverse effect on her normal day-to-day functioning, she wrote in paragraph 19 that:

 

“Dr Baxendale’s letter of 29^th March 2010 referred to in the judgment paragraph 30 relates that I continued to report persistent and ‘chronic fatigue’ as a component of my medical presentation and I would therefore argue that this symptom does, and continues to have the potential to have, a detrimental effect on my day-to-day functioning.  When combined with a number of other factors, for example, an infection or several infections, as I am prone to experiencing, this can and does have a cumulative impact on my ability to function both physically and cognitively.”

 

The Claimant stated that without appropriate treatment and medication, the adverse effects of her medical condition would resume and have a continuing long-term effect on her health and ability to function on a day-to-day basis, particularly if she were to suffer from multiple infections at the same time or within a short time frame.  Accordingly the majority of the ET did not err in deciding that the deduced effect of her impairment was substantial and adverse on her ability to carry out day-to-day activities.

 

33.              As for the second ground of appeal, the Claimant contended that the majority did not misdirect themselves in applying the correct test of whether it “could well happen” to deciding whether the substantial adverse effects of the impairment were long term.  In paragraph 12 of her skeleton argument the Claimant contended:

 

“… as my symptoms are well controlled at present, the potential for substantial adverse effects are less likely to return than it would be should my medication regime and coping strategies be removed.  The majority did therefore not misdirect themselves in applying the correct test of ‘could well happen.”

 

Discussion and conclusion

34.              The Respondent agreed that the Claimant has a physical impairment within the meaning of section 6(1)(a) EqA.  The impairment is that she suffers from Selective IgA.

 

Ground 1

35.              The unchallenged evidence of Professor Grimbacher was that Selective IgA deficiency renders patients susceptible to recurrent infections.  Selective IgA does not itself have any effect on the Claimant’s ability to carry out normal day-to-day activities.

 

36.              The ET found that during the period July/August 2007 to November 2007 the Claimant had an impairment which had a substantial adverse effect on her ability to carry out day-to-day activities.  There is no appeal from this finding.  From paragraph 41 it appears that it was submitted on behalf of the Respondent that this period was the only one in respect of which there was evidence of the effect of a prolonged persistent infection on the Claimant’s ability to carry out normal day-to-day activities.

 

37.              Although the Claimant suffered from infections from time to time after November 2007, the ET held at paragraph 36 that her:

 

“…evidence was not able to demonstrate that her impairment had an adverse effect on normal day-to-day activities during the relevant period up to October 2010.”

 

The ET found that the Claimant’s impairment did not have a substantial adverse effect on her ability to carry out normal day-to-day activities at the relevant time.  They then considered:

 

“37 …..the effect of any medical treatment within the meaning of paragraph 5, Schedule 1 to EqA and whether the claimant’s impairment is to be treated as having a substantial adverse affect (sic) on her ability to carry out normal day-to-day activities (the deduced effect).”

 

38.              As appears from paragraph 26, the relevant medication for the purpose of considering the deduced effect of the impairment without medication and EqA Schedule 1 Part 1 paragraph 5 was medication to ‘help prevent her get (sic) infections. ….the relevant medications for keeping her well as a result of her Selective IgA.’  These are the medications the Claimant has taken whether or not she had an infection.

 

39.              In paragraph 25 the ET recorded that when in the period from July 2010 to the end of October 2010 the Claimant had diarrhoea and chest infection, she used antibiotics.  Despite suffering infections, the ET unanimously held at paragraph 46 that,

 

“..the impairment ceased to have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities in November 2007, when the claimant returned to work.”

 

Save for a three month period between July/August and November 2007, the Claimant’s evidence did not establish that her impairment had a substantial adverse effect on her ability to carry out normal day-to-day activities.

 

40.              The words of EqA section 6(1)(b) require no elaboration.  Does the impairment, Selective IgA, have a substantial and long-term adverse effect on the Claimant’s ability to carry out day-to-day activities?  The statute requires a causal link between the impairment and a substantial and long-term adverse effect on the ability to carry out day-to-day activities.  In many cases that link will be direct.  However in our judgment the EqA does not require that causal link to be direct.  If on the evidence the impairment causes the substantial adverse effect on ability to carry out day-to-day activities it is not material that there is an intermediate step between the impairment and its effect provided there is a causal link between the two.

 

41.              The ET considered the effect of the Claimant’s impairment on the intermediate stage, her susceptibility to infection, and reached the uncontroversial conclusion that the deduced effect of the impairment was an increased susceptibility to infection. The majority concluded that infections ‘will then result in a substantial adverse effect on the Claimant’s ability to carry out day-to-day activities’.  The majority stated in paragraph 42 that in so concluding they relied on Professor Grimbacher’s answer to Question 6, in particular his comment that Selective IgA renders people more “susceptible to recurrent infections” and that during the time of such infection the Claimant’s “…ability to work is obviously severely impaired and results in sick leave…”.

 

42.              In our judgment Professor Grimbacher’s answer to question 6, did not establish that increased susceptibility to infection would or would necessarily have a substantial adverse impact on the Claimant’s ability to carry out day-to-day activities. He commented that during the time of infections the Claimant’s ability to work ‘is obviously severely impaired’. However the ET found that notwithstanding that the Claimant suffered from infections from time to time, her impairment ceased to have a substantial adverse effect on her ability to carry out day-to-day activities in November 2007.  Professor Grimbacher did not state that more frequent infections would ‘result in a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities, namely getting to work, shopping, housekeeping and walking’.  The only such day-to-day activity mentioned by the Professor was ‘getting to work’.  The judgment does not indicate that the majority relied on any other evidence to support their conclusion. In our judgment the evidence relied upon by the majority of the ET does not or does not adequately support a conclusion that increased frequency of infections would result in a substantial adverse effect on the Claimant’s ability to carry out day-to-day activities.

 

43.              On the basis that the deduced effect of the Claimant’s impairment is that she would be likely to suffer more frequent infections, the material question for the ET was whether increased frequency of infections would itself have a substantial adverse effect on the Claimant’s ability to carry out normal day-to-day activities. In deciding that infections which ‘are more likely to occur’ would result in such an effect, in our judgment the majority of the ET came to a conclusion which was not or not adequately supported by the evidence relied upon by them, the answer by Professor Grimbacher to Question 6.

 

44.              In our judgment, not least because we do not have the notes of the evidence given by the Claimant to the ET or the documents provided to them, it cannot be said that, if the correct question has been considered and decided on the relevant evidence, the ET would inevitably have concluded that the Claimant had not established that the deduced effect of her impairment was a substantial adverse effect on her ability to carry out normal day-to-day activities.  Accordingly we do not accept the contention on behalf of the Respondent that we should do so.

 

Ground 2

45.              The ET held that the substantial adverse effects of her impairment on the Claimant’s ability to carry out normal day-to-day activities ceased in November 2007.  Since the ET unanimously held that the Claimant’s evidence did not establish that the effect of her impairment was long-term within the meaning of EqA Schedule 1 Part 1 paragraph 2(1), they considered whether its adverse effect on the ability to carry out day-to-day activities was likely to recur within the meaning of paragraph 2(2).

 

46.              In Swift v Chief Constable of Wiltshire Constabulary [2004] IRLR 540 the EAT held that in considering the provision in the Disability Discrimination Act 1995 equivalent to paragraph 2(2) of Schedule 1 Part 1 of EqA, a tribunal should ask themselves four questions:

 

“20. Firstly, was there at some stage an impairment which had a substantial adverse effect on the applicant’s ability to carry out normal day-to-day activities?

22. Secondly, did the impairment cease to have a substantial adverse effect on the applicant’s ability to carry out day-to-day activities, and if so when?

24. Thirdly what was the substantial adverse effect?

25. This question needs to be answered with a degree of precision, for as we shall see, paragraph 2(2) requires the tribunal to consider whether that effect is likely to recur…

26. Fourthly, is that substantial effect likely to recur?”

 

47.              Since Swift, Lord Roger in the House of Lords in SCA Packaging Ltd v Boyle and Equality and Human Rights Commission [2009] IRLR 747 held at paragraph 42 that the word “likely” in the equivalent Northern Ireland provision to paragraph 2(2) means “could well happen” rather than “possible” or “more likely than not”.

 

48.              The ET held that during the period July/August 2007 to November 2007 there was an impairment which had a substantial adverse effect on the Claimant’s ability to carry out day-to-day activities.  The impairment ceased to have that effect in November 2007.  The adverse effect was:

 

“…that the Claimant was not able to get out of bed for several days at a time because of fatigue, was unable to go shopping and was unable to do very much housework such as cleaning and vacuuming.”

 

49.              The ET held at paragraph 50 that:

 

“…Professor Grimbacher does not appear to deal with the question as to whether the substantial effect of the Claimant’s impairment is likely to recur.”

 

50.              The majority of the ET concluded that the fact that the Claimant had one period between July/August 2007 to November 2007 when her impairment had a substantial adverse effect on her ability to carry out normal day-to-day activities and that her impairment is life-long was sufficient to support a conclusion that it could well happen that the substantial adverse effects of the Claimant’s impairment would recur.  We agree with the submission on behalf of the Respondent that the conclusion of the majority that the adverse effects of the Claimant’s impairment were likely to recur was insufficiently supported by evidence.  It was not supported by evidence from Professor Grimbacher, who did not answer the question of whether such effects were likely to recur.  Nor did it take into account the fact that the Claimant could give no examples of her impairment having the effects suffered in 2007 in subsequent years.  The inference drawn by the majority is put in question by absence of evidence of adverse effects of the impairment either after November or before July/August 2007.  The majority of the ET misdirected themselves in considering that the factors upon which they relied were sufficient to satisfy the test explained in Boyle that the substantial adverse effects caused by the Claimant’s impairment in 2007 could well happen again.

 

51.              Particularly in the absence of the notes of the Claimant’s evidence and the documents before the ET, we cannot be sure that on the material before them, properly directing themselves, the only conclusion which could have been reached on whether the effect of the impairment was long-term was that reached by the Employment Judge.  Accordingly we do not substitute a decision to that effect.

 

 

 

Disposal

52.              The appeal is allowed on both grounds and the decision of the Employment Tribunal that the Claimant is a disabled person within the meaning of the Equality Act 2010 section 6(2) read together with Schedule 1 Part 1 is set aside.

 

53.              The issue of whether the Claimant was at the material time, October 2010, a disabled person within the meaning of the Equality Act 2010 is remitted for re-hearing before a differently constituted Employment Tribunal.