McDougall v Richmond Adult Community College

JurisdictionEngland & Wales
JudgeLord Justice Pill,Lord Justice Sedley,Lord Justice Rimer
Judgment Date17 January 2008
Neutral Citation[2008] EWCA Civ 4
Docket NumberCase No: A2/2007/1913
CourtCourt of Appeal (Civil Division)
Date17 January 2008

[2008] EWCA Civ 4

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

HIS HONOUR JUDGE McMULLEN QC UKEAT/0589/06/DM

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Pill

Lord Justice Sedley and

Lord Justice Rimer

Case No: A2/2007/1913

Between:
Richmond Adult Community College
Appellant
and
Elizabeth Mcdougall
Respondent

Adam Ohringer (instructed by Lyons Davidson) for the Appellant

James E Petts (instructed by Free Representation Unit) for the Respondent

Hearing Date : 27 November 2007

Lord Justice Pill
1

This is an appeal against the judgment of the Employment Appeal Tribunal (“EAT”), His Honour Judge McMullen QC presiding, allowing an appeal from a decision of an Employment Tribunal held at London (South) registered on 27 June 2006. The case turns upon the construction of paragraph 2(2) of Schedule 1 to the Disability Discrimination Act 1995 (“the 1995 Act”).

2

Ms Elizabeth McDougall, the respondent to the present appeal, applied for a position as a database assistant at Richmond Adult Community College (“the appellants”). She was offered and accepted the position, subject to satisfactory medical clearance and references. Having received a medical report, the appellants purported to withdraw the offer on the ground that medical clearances had not been obtained. No challenge is made to the finding of the Employment Tribunal that there was a binding contract of employment which the appellants breached “when they renounced her offer of employment”. The respondent was held entitled to damages limited to one month's notice pay.

3

The contentious issue is the other finding of the Employment Tribunal, reversed by the EAT, that the respondent “was not disabled and her claims for disability discrimination fail and are dismissed”. The Employment Tribunal held that the respondent's health problems did not amount to a disability within the meaning of the 1995 Act.

4

Section 1(1) of the 1995 Act provides:

“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”.

5

Section 4(2)(d) of the 1995 Act provides that it is unlawful for an employer to discriminate against a disabled person by dismissing him, or subjecting him to any other detriment. Section 17A of the Act provides a remedy against a person who has discriminated against him in a way which is unlawful under the Act. That is by way of a complaint to an Employment Tribunal, whose powers include making a declaration as to the rights of the complainant and ordering the employer to pay compensation to the complainant.

6

The Employment Tribunal found that the respondent suffered from a mental impairment; persistent delusional disorder, with a differential diagnosis of schizo-affective disorder. In their opinion, it did not have a substantial adverse effect on her ability to carry out normal day-to-day activities within the meaning of Section 1 of the 1995 Act. That finding was reversed by the EAT and there is no appeal to this court against the decision of the EAT on that point. The effect of paragraph 2(2) above on the present facts remains in issue.

7

Between 1 November 2001 and 25 February 2002, the respondent had been admitted to hospital for treatment under section 3 of the Mental Health Act 1983. She was then discharged into the care of Dr Megan Roberts, consultant psychiatrist.

8

The Employment Tribunal held [I have retained their description of the respondent as the claimant]:

“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.

9

I am not entirely comfortable with the inter-relation of the several findings in this case, but the parties are agreed that the single point for determination by this court is the meaning to be given to the expression “if that effect is likely to recur” in paragraph 2(2) of Schedule 1 to the 1995 Act. In reversing the finding of the Employment Tribunal, the EAT stated, at paragraph 29:

“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”.

10

The EAT also stated, at paragraph 35, that “the very nature of the diagnosis makes it logical to regard the condition as likely to recur” and that “in April 2005 it was a feature of this persistent condition that it was highly likely to recur”. However, no challenge is made to the finding of fact of the Employment Tribunal, as the fact finding tribunal, in paragraph 53 of their determination set out above. I repeat that it is the single issue of construction that the court is asked to determine.

11

On behalf of the appellants, Mr Ohringer submits that the wording of paragraph 2(2) of Schedule 1 to the 1995 Act is clear. Where a person formerly had an impairment which had a substantial adverse effect on that person's ability to carry out normal day-to-day activities but is now able to carry out those activities so that there is no current adverse effect, the decision maker, the employer, has to decide whether that effect is likely to recur. The likelihood has to be considered on the basis of circumstances existing at the date of that decision, which is the date of the alleged discriminatory act on which the claim is based, it is submitted. The employer is required to make his assessment on that date, an assessment based on what is likely in the future. What happens after that date cannot be relevant to the merits of the decision based on that assessment. The duty of the Employment Tribunal is to consider whether the employer, by his decision, has committed a discriminatory act and can do so only on the basis of material available at the time the act was performed.

12

On behalf of the respondent, Mr Petts submits that the only true construction of the paragraph consistent with the purpose of the 1995 Act is for the Employment Tribunal to consider all relevant evidence about the impairment which emerges up to the date of the hearing before them and to assess what was likely to occur in the light of what has occurred. If there has been a recurrence, that must be taken into account regardless of whether or not at some earlier time the position appeared, falsely in so far as the Tribunal can now discern, to have been different.

13

The respondent relies, as did the EAT, on the principle in Bwllfa and Merthyr v Pontypridd Waterworks Company [1903] AC 426. Lord Macnaghten stated, at page 431:

“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...

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