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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Nissa v Waverly Education Foundation Ltd & Anor [2018] UKEAT 0135_18_1911 (19 November 2018) URL: https://www.bailii.org/uk/cases/UKEAT/2018/0135_18_1911.html Cite as: [2018] UKEAT 0135_18_1911, [2018] UKEAT 135_18_1911 |
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At the Tribunal | |
Before
HER HONOUR JUDGE EADY QC
(SITTING ALONE)
APPELLANT | |
(2) MS J NEWSOME |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR MUGNI ISLAM-CHOUDHURY (of Counsel) Instructed by: Wildings Solicitors 862-864 Washwood Heath Road Ward End Birmingham B8 2NG |
For the Respondents | MS ELIZABETH HODGETTS (of Counsel) Instructed by: Irwin Mitchell LLP Solicitors Imperial House 31 Temple Street Birmingham B2 5DB |
SUMMARY
DISABILITY DISCRIMINATION - Disability
Disability - definition - "substantial" - "long-term"
Until she resigned on 31 August 2016, the Claimant was employed by the Respondent as a Science Teacher. In her subsequent ET claim, she contended she had suffered disability discrimination; it was the Claimant's case that, since December 2015, she had suffered from a physical impairment, ultimately diagnosed as fibromyalgia, together with mental distress. She claimed these impairments caused her to suffer a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. Considering whether the Claimant was disabled for the purposes of the Equality Act 2010, the ET first asked whether, on the evidence available within the material period (16 December 2015 to 31 August 2016) it could be said that the effects of the Claimant's impairment/s were likely to last more than 12 months. Noting that none of the Claimant's advisers had considered her condition long-term, that a diagnosis of "fibromyalgia" was not made until 12 August 2016 and was subject to the caveat that the Claimant's symptoms might slowly improve as she was no longer in the Respondent's employment, the ET concluded it could not be said to have been likely that the effects would be long-term. In the alternative, the ET went on to consider whether the Claimant had established that her conditions had a substantial effect on her ability to carry out normal day-to-day activities. Accepting they had some adverse effect, the ET held that her evidence had failed to demonstrate the precise nature of the effect and it noted that none of the clinicians or therapists consulted by the Claimant during the material period made any reference to any specific effects. Even if the effects of the Claimant's impairments had been long-term, the ET would, in the alternative, have found she had failed to establish that they had given rise to the relevant substantial effect.
The Claimant appealed against both findings.
Held: allowing the appeal
In determining whether the effect of the Claimant's impairments was "long-term", the ET had focused on the question of diagnosis rather than the effects of the impairments and had adopted a narrow approach, rather than looking at the reality of risk - whether it could well happen - on a broad view of the evidence available. More than that, although stating it had avoided viewing the issues with the benefit of hindsight, that was precisely what the ET did when putting emphasis on Dr Khan's prognosis post-dating the material period.
As for whether the effect was "substantial", the ET's reasoning did not demonstrate that it looked to the deduced effects, assessing the impact of the Claimant's conditions absent mitigation through medication. There was equally nothing to show that the ET had paid any regard to the Claimant's doctor's report, which had detailed the effects of the impairments on the Claimant's ability to carry out normal day-to-day activities and was plainly relevant to this issue. Taking into account the wider medical evidence (including evidence of the medication prescribed to the Claimant, which would then need to be discounted), the Claimant's periods of sick leave (apparently demonstrating an inability to carry out the activities for her work) and the quite detailed explanation provided in her doctor's report of 22 June 2016, and reading all that alongside the Claimant's own statement, the ET's Decision on "substantial adverse effect" could not stand; it failed to take into account relevant evidence and that rendered its conclusion unsafe.
Case remitted to a different ET for re-hearing.
HER HONOUR JUDGE EADY QC
Introduction
(1) Whether the ET erred in its determination of the issue whether the impairment suffered by the Claimant was long-term.
(2) Whether the ET erred in law in its determination of the question whether the impairment was substantial.
(3) On the question whether the impairments suffered by the Claimant were substantial, the Claimant further contends that the ET reached a conclusion that could properly be described as perverse.
(4) Further/in the alternative, the Claimant argues that the ET's reasoning on the "substantial" issue was inadequate.
The Background Facts and the ET's Decision and Reasoning
The Relevant Legal Principles
"(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.
(2) A reference to a disabled person is a reference to a person who has a disability."
"2. Long-term effects
(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, …"
The Grounds of Appeal and the Parties' Submissions
Long-term
Substantial
Discussion and Conclusions
Long-term
Substantial
"7.1. preparing and cooking food;
7.2. going shopping;
7.3. washing and bathing;
7.4. getting dressed;
7.5. using the toilet, as at times I have difficulty in moving into a sitting position and cleaning myself."
"10. My role as a teacher included standing, which became extremely difficult especially when I had one lesson after another without a break in between. At times I was unable to pick up or move small items or equipment such as a tray of pens.
11. On occasions my pain was so severe by the end of the day that I could not move. I would end up going home late as a result, having to wait until I could regain enough strength to move. Members of staff sometimes had to help me down to and into my car, even strapping my seatbelt on for me as I could not rotate my arms. Whilst working I could not take my amitriptyline medicine to relax my muscles due to its side effects.
…
28. On 16 May 2016 I had my first full day back at work including lessons without a break in between. By the end of the day I was in tears. Although I was due to finish work at 3.10pm, I was physically incapable of leaving. I was in extreme pain and unable to walk. Eventually, at about 3.45pm, one of the teachers, helped me down and into my car, including carrying my bag for me. When I finally made it home my husband had to help me out of the car and up the stairs into bed.
29. On 17 May 2016 I arrived late for work, just after 9am, because I was in pain most of the night and very stiff in the morning. Although my day was relatively light, with only 3 lessons to teach, by the end of it I was exhausted and in so much pain that again I had to be helped out of the building, this time by a technician who carried my things for me."
"It is suspected that Mrs Nissa maybe suffering from fibromyalgia and we have referred her to the NHS specialist rheumatologist department where she is currently undergoing tests for further diagnosis.
She tells me that: her muscular problems are affecting movement in the upper and lower body. In the upper body these include neck, shoulders, upper arms and upper back resulting in restricted rotation in arms and pain; the pain extends to the upper back from the neck and shoulders. In the lower body the pain radiates from her buttocks and extends to her legs restricting her leg movement. Her muscular pain is making it more and more difficult for her to walk. Working and carrying out normal daily tasks is becoming extremely difficult for her due to overwhelming pain and distress that is both physical and psychological.
Due to the muscular pain in her upper body she is unable to carry out many of her daily chores. She is unable to prepare and cook food independently. Shopping for necessities is extremely difficult. She also requires support in washing hair and upper body as is unable to lift her arms up high due to having restricted rotation in arms. Dressing and getting ready on a daily basis is very exhausting and overwhelming for her.
The combination of lower body and upper body muscular pain results in her having difficulty in attending toilet needs as she has difficulty in moving into a sitting position and difficulty in rotating her arms to clean herself.
This combination of lower body and upper body muscular pain also results in her having difficulty in her work life, causing her further pain and distress. Mrs Nissa works as a teacher and finds it very painful and distressful to continue with her normal everyday tasks and duties in her work life, such as delivering lessons, reading, planning, marking and carrying out other duties.
She has difficulty in sleeping and waking up in the mornings due to her muscular pains and requires support in getting out of bed due to stiffness of muscles and limited movement that is exacerbated throughout the night.
Mrs Nissa is on various medications, these are listed below. However, she requires support from family members in the form of prompting her and reminding her to take her medication due to overwhelming physical and psychological pain and distress she is suffering and due to the side effects she encounters from taking these medications."
Decision and Disposal