Appeal No.	 EAT/867/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 February 1999
Judgment delivered on 17 June 1999

Before
HIS HONOUR JUDGE PETER CLARK
MS S R CORBY
MR J A SCOULLER

MR B GREENWOOD	APPELLANT

BRITISH AIRWAYS PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A FREER
(Representative)
Legal Officer
GMB National Legal Department
22-24 Worple Road
London
SW19 4DD	
For the Respondents	MR P NICHOLLS
(of Counsel)
Instructed by:
Ms J Harrison
Legal Department
British Airways Plc
Waterside (HBA3)
PO Box 365
Harmondsworth
UB7 0GB	

	JUDGE PETER CLARK:	This is an appeal by the applicant, Mr Greenwood, against the decision of the London (South) Employment Tribunal sitting on 10th March 1998, dismissing his complaint of unlawful disability discrimination brought against his employer, the respondent British Airways PLC, on the grounds that he was not at the relevant time disabled within the meaning of the Disability Discrimination Act 1995. That decision was promulgated with extended reasons on 1st May 1998.

The Facts
The applicant commenced employment with the respondent in Belfast as a Senior Cargo Assistant on 2nd May 1989. Between October 1993 and March 1994 he was off work suffering from nervous tension. During that period of sick absence he was seen by Dr Bagshaw, the respondent’s Senior Aviation Physician, who reported on 23rd November 1993 that:

“He [the applicant] does indeed have a chronic underlying medical problem of which I am arranging appropriate treatment. I have recommended that he take some sick leave while we get the treatment underway and this will be appropriately certified by his General Practitioner. It is possible that he may have to attend a specialist here at Heathrow and I would like to confirm that he will be fit to use staff duty travel.”

	On 14th March 1994 he transferred to work at Gatwick Airport. 

	Following his transfer to Gatwick the applicant underwent counselling with the respondent’s Employee Assistance Programme [“EAP”] and, on the recommendation of his General Practitioner, with his local Community Psychiatric Nurse.

	He was found to be suffering from flashbacks related to an incident in 1992. The Employment Tribunal made the following findings in paragraph 11 of their reasons:

“11	The flashbacks can prevent Mr Greenwood from working altogether. On occasions he can work although he feels depressed and tense. His concentration can be affected. He can suffer tiredness. If he is not depressed, he can carry out a normal day’s work. He has suffered feelings of guilt in respect of his family. His sleep has been affected. Since 1994, he has been intermittently on medication, but since the month of September 1997, that medication has been constant. During the latter part of 1996 and into the beginning of 1997, his symptoms were particularly difficult to cope with.”

	He was off sick on three occasions between 6th December 1996 and 14th February 1997, leading the Operations Manager, Mick Chaston, to call him to an interview on 26th February 1997 to discuss his absences. During the interview Mr Chaston pointed out that the applicant’s sickness record had triggered the respondent’s review policy; if his sickness record continued to result in non-attendance for a further six months that would be unacceptable to the Company. Mr Chaston suggested that the applicant saw the Company Doctor or attended EAP for counselling. The applicant followed that advice and saw Dr Bagshaw again on 10th March 1997. Following that consultation Dr Bagshaw wrote to Mr Chaston the following day in these terms:

“I have known [the applicant] for the last 4 years, during which time I have been involved in management of his medical problem. He is conscientious and has in the past taken sick leave only when it has been necessary for his well being. Indeed, his reluctance to take sick leave had on occasion prolonged his recovery time.
He is under the care of his GP and associated specialists and they have recommended that he takes a period of 2 weeks sick leave to enable his problem to be addressed.
I support this course of action, because I believe once he has sorted the current problem out, he will be able to give regular and effective service to fulfil the needs of the business.”

	The applicant returned to work, following two weeks sick leave, on 25th March 1997.

	In April 1997 Mr Chaston told the applicant that having regard to Dr Bagshaw’s report and the discussions regarding his absence from work due to sickness and the reasons relating to time lost, he was restricting his overtime to a maximum of 15 hours per week. That restriction would be reviewed on 12th May.

	The applicant saw Dr Bagshaw again on 6th May 1997, and thereafter that Doctor wrote to Mr Chaston saying that:

“[The applicant] returned to see me today following his course of treatment arranged through his GP. I am delighted that the treatment appears to have been successful and [the applicant] is now fit and well. I know he has appreciated your support which I am sure had contributed to his recovery.”

	The successful treatment involved antidepressants and counselling.

	On 13th May 1997 Mr Chaston allowed the applicant to increase his overtime level to a maximum of three shifts average per week until the next review to be held on 9th June.

	On 16th May the applicant applied for the internally advertised post of Service Delivery Co-ordinator – Reception [“SDC-Reception”], a post which represented promotion.

	He was interviewed for the post on 11th June. Meanwhile, Mr Chaston had lifted all overtime restrictions on the applicant on 9th June.

	On 30th June the applicant was informed that he had been unsuccessful in his application for the SDC-Reception post. At a feedback session held on 10th July the applicant was told by his manager, Sue Peckham, that the team evaluating the interviews had concluded that he was not considered for promotion because he was viewed as unreliable due to his previous sickness and non-co-operation in moving to other areas.

	Subsequently he raised a grievance over his failure to obtain promotion. He went off sick with depression on 16th August 1997 and remained off work up to the date of tribunal hearing on 10th March 1998.

	The applicant accepted in evidence that in June 1997 he was under no restriction in his everyday life and was in a better state of health than he had been. He felt up to the SDC-Reception post for which he applied.

The Complaint
In Goodwin v The Patent Office [1999] IRLR 4, a case decided by the EAT (Morison P presiding) after this tribunal’s decision in the instant case, the President gave useful guidance to Employment Tribunals in approaching questions under the 1995 Act. That was a case in which the sole issue before the EAT was whether the Employment Tribunal had erred in finding that the applicant was not disabled within the meaning of the Act. At paragraph 19 the President made the point that when faced with a disability issue the tribunal should look carefully at what the parties said in their forms IT1 and IT3. That is plainly the starting point.

	Here, the applicant specifically complained, among other things, that at the feedback session his manager stated that he was currently viewed as quite unreliable due to his previous sickness. He alleged that he had been discriminated against for a reason relating to his disability in the opportunities which the respondent afforded him for promotion (s.4 (2)(b)).

	By their Notice of Appearance the respondent denied that he was suffering from a disability within the meaning of the Act and denied discriminating against him. Paragraph 6.9 of the grounds for resistance reads:

“It was the wash up group who decided that the Applicant was not the preferred candidate. The position involved shift work and if one member of the group is constantly absent, this puts a large amount of pressure on the remaining staff, who then have to cover and pick up a number of unsociable hours. Therefore the Applicant was not offered this position as it was felt that he was unsuitable …”

	The applicant developed this theme in his witness statement which was put before the tribunal as his evidence-in-chief. The tribunal accepted his evidence (reasons. Paragraph 10).

	At paragraph 39 of his witness statement, referring to his “wash-up” session with Sue Peckham on 10th July, the applicant said:

“I then moved on to ask why I was not offered the position. Sue informed me that as a result of the wash up team … it was the general view that I would not be considered for promotion on this occasion as I am currently viewed as ‘unreliable due to my previous sickness and non-co-operation in moving to other areas.’”

	At paragraph 59 he concluded his statement:

“I therefore consider that in using my attendance as the reason for denying me the promotion, I was being discriminated to [sic] in regard to my disability.”

Disability
This appeal draws attention to the distinction between what we shall call s. 1 disability and s. 2 disability.

S. 1 disability
S. 1(1) 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.” (Emphasis added)

By s. 1(2) a “disabled person means a person who has a disability.”

	Schedule 1 provides, so far as is material:

“1. (1) Mental impairment includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness.
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 normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”

	Under the guidance issued by the Secretary of State under s. 3 of the Act [“the Guidance”] in determining whether it is likely that an event will happen the test is whether it is more probable than not it will happen (Guidance. paragraph B7) and in assessing the likelihood of an effect lasting for any period, account should be taken of the total period for which the effect exists, including time before and after the point when the discriminatory behaviour occurred (paragraph B.8).

	By Schedule 1. 4.-(1):

“An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following-
…
(g)	memory or ability to concentrate, learn or understand;”

Schedule 1. paragraph 5 provides for the making of Regulations dealing with the meaning of substantial adverse effect. Paragraph 6 provides that, with certain immaterial exceptions, medical treatment controlling the condition is to be disregarded when assessing the condition under the four requirements of s. 1 (1).

	By paragraph A1 of the Guidance a “substantial” effect is one which is more than “minor” or “trivial”.

	Examples of what would and would not be regarded as having a substantial effect in cases of mental impairment falling under Schedule 1 are to be found in paragraph C.20 of the Guidance. However, as the President pointed in Goodwin, the examples there given should not be treated as some sort of extra hurdle over which the applicant must jump.

S. 2 Disability
S. 2 provides that the provisions of Parts I and II (so far as is material here) apply in relation to a person who has had a disability as they apply in relation to a person who has that disability, subject to the modifications made by Schedule 2. It is specifically provided, by subsections (4) and (5) that the question whether a person had a disability at a particular time (“the relevant time”) shall be determined as if the provisions of the Act were in force at the relevant time, which may be before the passing of the Act.

	Schedule 2 includes, by paragraph 5(2), this modification to Schedule 1 paragraph 2(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 be treated as continuing to have that effect if that effect recurs. That may be contrasted with the provision in Schedule 1 paragraph 2(2), which deals with the likelihood of the effect recurring. See also the Guidance paragraph B.9.

Unlawful disability discrimination
Whilst it is, of course, open to an Employment Tribunal to take the issue of disability under s. 1 and/or 2 as a discrete question, suitable for a preliminary hearing under Rule 6(1) of the Employment Tribunal Rules of Procedure, it should be viewed in the context of the claim of unlawful disability discrimination and the defence to that claim.

	In the present case the applicant alleged that he had a s. 1 disability and/or had had a s. 2 disability and that he had been discriminated against in June 1997 when he was not considered for promotion because the respondent viewed him as unreliable due to his earlier sickness. The respondent, in addition to denying that the applicant suffered from a disability, alternatively that he was discriminated against, further relies on the defence of justification under s. 5(1)(b).

The Employment Tribunal decision
Having set out the facts and referred to the law the tribunal expressed their conclusions at paragraphs 30-34 of their reasons thus:

“30. We find that the Applicant was suffering, at the material times, from the clinically well recognised illness of depression, expressed by Dr Anderson as “neurotic depressive illness associated with pronounced symptoms of anxiety”.
31.	We accept that the condition suffered by the Applicant was capable of affecting his memory or his ability to concentrate. We accept the contention of the Respondent that only (g) in paragraph 4(1) of Schedule 1 could be applicable in this case.
32.	At the material time, in June 1997, the treatment had been successful and his condition had ceased and was not likely to recur. In the other-hand, the actual effect of being refused the promotion, and the surrounding circumstances, was that his condition did recur and has subsequently become worse. In our judgement, the question of whether a condition is likely to recur must be looked at in the light of the circumstances prevailing at the date of the act complained of, and not in the light of subsequent events.
33.	It is clear that although there had been the improvement by June 1997 to which we have referred, the Applicant was at that time a person who had had a disability, as provided by section 2 of the Act.
34.	In considering whether the Applicant’s mental impairment had a substantial adverse effect on his ability to carry out normal daily activities, we take account of the examples given in the guidance in the Code of Practice, as submitted on behalf of the Respondents. We accept the contention that the condition suffered by Mr Greenwood falls outside the realm of those examples in which there is substantial adverse affect. Therefore, we find that he was not, at the material time, relevant for the purposes of this complaint, a disabled person. It follows that the complaint is not well founded.”

The Appeal
It was common ground before us that the applicant put his case below on disability under both s. 1 and s. 2. That is apparent from the Originating Application and the fact that the tribunal dealt with s. 2 disability in their reasons.

S. 1 disability
It is convenient to adopt the four conditions for establishing disability under s. 1 set out by the EAT in Goodwin:

(i) 	does the applicant have an impairment which is either mental or physical? The tribunal found that the applicant was suffering, at the material times from the clinically well recognised illness of depression (reasons, paragraph 30).

(ii)	does the impairment have an adverse effect on the applicant’s ability to carry out normal day-to-day activities in one of the respects set out in Schedule 1, paragraph 4(1)? The tribunal accepted that the applicant’s condition was capable of affecting his memory or his ability to concentrate (Schedule 1, paragraph 4(1)(g).

Thus conditions (i) and (ii) were met.

(iii)	was the adverse effect substantial, that is more than minor or trivial?

The tribunal looked at the position as at June 1997, when the alleged discriminatory act took place. At that time, so they found, treatment had been successful and the applicant’s condition had ceased and was not likely to recur. Taking account of the examples given in paragraph C.20 the tribunal accepted (reasons, paragraphs 34) that the applicant’s condition fell outside the realm of those examples which amounted to a substantial adverse effect.

(iv)	was the substantial adverse effect long-term?

Long-term substantial adverse effect
It is convenient to take conditions (iii) and (iv) together.

	Mr Freer submits that the tribunal fell into error by focussing solely on the state of the applicant’s medical condition at the date of the alleged discriminatory act, June 1997 [“the material time”]. Paragraph B.8 of the guidance makes clear that in determining whether the effect of an impairment is likely to last for at least 12 months (Schedule 1, paragraph 2(1)(b) it is necessary to take account of the total period for which the effect exists, both before and after the point when the alleged discriminatory act took place. Accordingly the tribunal were wrong to disregard the effect after June 1997 in determining whether the adverse effect was (a) long-term and (b) substantial. The employer’s state of knowledge at that time is immaterial.

	Mr Nicholls submits that the tribunal was correct in finding that events crystallised in June 1997. The Guidance is not statutory. As at that time the effect of the applicant’s condition could not be described as substantial in any of the senses illustrated by paragraph C.20 of the Guidance. Further, the effect of the condition had ceased and was not likely to recur. That was a finding of fact which the tribunal was entitled to make. Events which occur after the date of the alleged discriminatory act are irrelevant for the purposes of determining whether the complainant was suffering from a disability under s.1.

S. 2 disability
Here, Mr Freer points to the tribunal’s express finding at paragraph 33 of their reasons that the applicant was, at June 1997, a person who had had a disability as provided by s.2. That is an end to the matter. Even if the applicant was not disabled within s. 1, he was disabled within s. 2 and the tribunal ought to have permitted the case to proceed to a hearing on the question as to whether the applicant had been discriminated against by reason of his disability, and if so, whether the respondent was able to show that such treatment of the applicant was justified.

	In his skeleton argument Mr Nicholls suggested that the applicant had not put his case in the alternative on the basis of past disability under s. 2. In oral submissions he no longer maintained that position, but contended that the tribunal finding at paragraph 33 must be read subject to the finding in paragraph 34 that the adverse effect on the applicant was not substantial. That applies equally to both s. 1 and s. 2 disability.

Conclusion
In our judgment the tribunal fell into error by considering the question of disability only as at the date of the alleged discriminatory act. We are quite satisfied, as the Guidance makes clear, that the tribunal should consider the adverse effects of the applicant’s condition up to and including the Employment Tribunal hearing. By disregarding its findings of fact as to the actual recurrence of the adverse effects of the applicant’s condition which led him to go off work by reason of depression on 16th August 1997 and to continue off work until the date of the tribunal hearing the tribunal’s approach was fatally flawed.

	Even if we accept Mr Nicholl’s submission that at paragraph 33 of the reasons the tribunal meant that the applicant had had a disability, but no longer had a disability as at June 1997, the failure to take into account the fact that the adverse effect did recur and became worse thereafter leads us to the conclusion that on the facts as found by the tribunal the applicant made out his case on s. 2 disability.

	In these circumstances it is not strictly necessary for us to determine the question whether, on the basis of those factual findings, the substantial adverse effect of the impairment was likely to last for at least 12 months for the purposes of s. 1 and Schedule 1 paragraph 2(1)(b).

	Accordingly we shall allow the appeal, declare that the applicant was a person who had had a disability within the meaning of s. 2 of the Act, and direct that the case be remitted to a fresh Employment Tribunal for determination of the question whether the respondent discriminated against the applicant for a reason which related to his disability in the opportunities which it had afforded him for promotion and if so, whether the respondent can show that that treatment was justified.