Stephanie Morris v Lauren Richards Ltd

The Claimant, Ms Stephanie Morris, brought a claim of disability discrimination against her former employer, Lauren Richards, arising from acts of alleged discrimination up to and including her dismissal on 19 September 2019. There was a Preliminary Hearing in the Employment Tribunal (ET) to determine whether the claimant was a disabled person for the purposes of section 6 of the Equality Act 2010 (EqA). That hearing was heard by Employment Judge Milner-Moore. She gave a judgment dated 9 February 2021. The Employment Judge decided that the Claimant was not a disabled person. The Claimant appeals against that decision.

The Claimant drafted her own claim and represented herself at the Preliminary Hearing, but she has subsequently been represented by Mr Paul Livingstone of counsel through the auspices of Advocate. I record this tribunal’s gratitude to him for the assistance that he has given to the Claimant. The respondent was represented both below and today by Mr Adam Ohringer of counsel, and also I thank him for his assistance.

The Employment Judge decided that the Claimant had an impairment, namely anxiety; that the impairment had a substantial impact on her ability to carry out normal day-to-day activities; but the effect of the impairment was not long-term and therefore the claimant was not a disabled person. This appeal concerns a narrow question of whether the tribunal erred in law in assessing the question of long-term effect.

Permission was granted on the sift by Eady P on this single ground. A second ground was refused by the President under Rule 3(7). I shall return to that, if necessary, at the conclusion of this judgment.

I turn now to the Employment Judge’s judgment. The Employment Judge directed herself to the legal principles relevant to determining the question of disability at paragraphs 12 and 13. She referred to section 6 of the Act, to Schedule 1 and to the statutory guidance on the question of long-term effect. She correctly directed herself at paragraph 12 as to Schedule 1 paragraph 2 of the Act:

At paragraph 13 she goes on to say: “In the context of the statutory definition of disability a substantial effect is one that is more than minor and trivial and ‘likely’ means that something ‘could well happen’”. She goes on correctly to direct herself as to paragraphs C4 and C5 of the statutory guidance on the meaning of disability. Neither party challenges the direction of the law in the judgment.

After considering the evidence, which was unchallenged by the Respondent, as I understand it, the Employment Judge deals with her conclusions at paragraph 17. As I have already indicated, the Employment Judge found that the Claimant suffered from an impairment, albeit that she found that it began somewhat later than the Claimant had argued. She found that an impairment had begun in late May or early June 2019 when the Claimant began to suffer from a loss of confidence and reported feeling overwhelmed at work. She then found that the impairment had a substantial effect on the Claimant’s ability to carry out normal day-to-day activities from late May and early June up to and including the date of dismissal on 11 September 2019. So, so far those first two questions of the statutory test to establish disability were satisfied.

After making those findings the Employment Judge turned to ask herself whether the impairment was long-term: had it lasted 12 months or was it likely to last more than 12 months? She reached the conclusion, inevitably in the light of its prior findings, that the impairment and its effect had not lasted for more than 12 months at the relevant time, i.e., by the date of dismissal. So, the central question remaining and the question that is central to this appeal is whether the effect of the impairment was likely to last for more than 12 months. That is addressed in paragraph 21. This is central to the appeal and therefore I shall cite it in full. At the beginning of paragraph 21 the Employment Judge said, “I did not consider that the evidence established that the claimant’s impairment had lasted 12 months or was likely to do so”. In sub-paragraph 21(a) the Employment Judge recorded when the impairment started and held that as at the date of dismissal her anxiety had lasted around three-and-a-half months. I then quote paragraph 21(b) in full:

The Claimant says that the ET erred by taking account of events after the relevant act of discrimination. The tribunal’s analysis, says the Claimant, assumes that the decision to dismiss was taken and implemented. The particular attack is on the third and fourth sentences of sub-paragraph 21(b) and in particular the sentence that reads, “There was nothing to suggest that her anxiety was likely to persist once she left the respondent and its work environment”. That, says the Claimant, is an impermissible approach, relying upon the decision of the EAT in Parnaby v Leicester City Council UKEAT/0025/19/BA, a decision of the President on 19 July 2019, unreported. Given that the principle is not in dispute I need do no more than cite from the headnote:

The Claimant further says that although the ET correctly directed itself of the need to look at the circumstances at the time of the alleged discrimination when considering whether or not the effect could well continue for the relevant period, the ET appears to have overlooked or misapplied its own direction in sub-paragraph 21(b).

The Respondent accepts (realistically, in my judgment) that it would be an error to take into account the effect of the dismissal on the impairment, its effects and the likelihood of persistence over the relevant time period. The Respondent accepts (again, realistically) there is an error in the reasoning in the third sentence of sub-paragraph 21(b). As Mr Ohringer puts it, and I accept, the third sentence in sub-paragraph 21(b) both looks at events after the relevant time and takes into account the effect of the very act that is alleged to be an act of discrimination.

In the light of those errors the Respondent’s case in opposing the appeal rests on two points:

Underpinning both of those submissions from the Respondent is the absence of relevant medical evidence demonstrating the likelihood of persistence of (i) the impairment, or (ii) the effects of the impairment. Mr Ohringer relies upon the decision of the EAT in Royal Bank of Scotland v Morris UKEAT/0436/10/MAA, a decision of Underhill P, as he then was. In that case the tribunal had found that the claimant was a disabled person on the grounds of an illness (clinical depression) and went on to find that the bank had failed to make reasonable adjustments in the circumstances. The bank appealed on the basis of the error in the finding that the claimant was a disabled person, and the EAT’s conclusion, I read from the headnote, was that:

The President, in reaching that conclusion, made certain observations in relation to the relevance and necessity of medical evidence in establishing disability. At paragraph 55 of his Judgment Underhill P said this:

The EAT then went on to consider in some detail the medical evidence that was available in the case before analysing the tribunal’s decision and conclusions in relation to that evidence. In paragraph 59, as the claimant submitted, it stated that the tribunal had not expressly considered or directed itself as to the questions of:

Those points were not considered. At paragraph 60 Underhill P records that:

He then goes on to address those two questions. It is important, in my judgment, to bear in mind that the following observations in relation to medical evidence are taken in the context of the EAT seeking to determine whether or not the tribunal had addressed the correct questions and whether or not it had reached conclusions that were open to it on the evidence in the particular case. At paragraph 61 the EAT said, “We do not however believe that the evidence justified any finding about how long either before or after that date this was the case”, and then goes on to analyse the evidence in relation to the particular periods of time as to the impairment, its prognosis and its deduced effect. In relation to deduced effect Underhill P said:

At paragraph 62 the EAT went on to consider the question of likelihood of persistence and said:

The EAT went on (at paragraph 63) to conclude that it was not open to the tribunal on the evidence before it to find that the claimant was disabled during the relevant period and made some observations as to the capacity of the claimant to have filled the evidential gap by expert evidence and the reliance on contemporary medical notes. Underhill P then said:

The Respondent therefore points out:

The Claimant, the Respondent argues, did not provide the required medical evidence to prove long-term effect, which is why, the Respondent says, the claim failed. The Respondent says that the impugned sentence in sub-paragraph 21(b) is unnecessary and not a material part of the reasoning. Correctly directing itself, the tribunal could in any event only have reached one conclusion, i.e., that the Claimant had failed to prove her case.

I turn now to my discussion of these arguments and the conclusion. As I have indicated, there is no dispute that there is an error of reasoning in sub-paragraph 21(b) of the tribunal’s decision, where the tribunal takes into account that the cause of the Claimant’s anxiety was centred on her issues in the workplace and the demands of her job and there was nothing to suggest that her anxiety was likely to persist once she had left the Respondent and its work environment. The Respondent characterises sub-paragraph 21(b) as setting out three separate routes to a conclusion that the impairment was not likely to last 12 months:

In my judgment, the Respondent’s analysis of these three separate routes to a conclusion is incorrect and contrary to a plain reading of the paragraph. It is impossible to say, in my judgment, that the impugned sentences are separate from and not necessary to the conclusion that the Claimant’s impairment was not likely to last for 12 months. As I read sub-paragraph 21(b), the impugned sentences are part of the explanation for the conclusion as to why the evidence did not suggest that the condition was likely to last 12 months, applying the test of whether this is something that could well happen. In any event even if one breaks down sub-paragraph 21(b) into three components it is difficult to see how the tribunal weighed the relevance of those three separate components. I conclude can only conclude that the sentences in the middle of the paragraph formed a material and indeed, I would say, essential part of the tribunal’s reasoning in reaching its conclusion. So, it appears to me clear that the tribunal has made an error of law in addressing the question of whether or not the impairment was likely to last for 12 months or more, and I accept the Claimant’s submissions in relation to that.

That leaves only the question of whether this error can be said not to have affected the result. As I have already indicated, the Respondent relies on Jafri and submits that the error cannot have affected the result and therefore invites me to confirm the same decision that the tribunal had reached. On the one hand I see the force of the Respondent’s point that there was no medical evidence in front of the tribunal as to the likelihood of the continuation of either the claimant’s impairment or the effect of it on her day-to-day activities. I have carefully considered and bear in mind the EAT’s decision in Morris. However, it is clear from that decision that:

I also bear in mind that the threshold set for a tribunal of likelihood, i.e., whether it is something that could well happen, is a low one. So, the tribunal properly directing itself had to make an assessment on the available evidence as to whether the Claimant’s condition and its effects, from which she was suffering at the date of dismissal, could well continue for another eight-and-a-half months, having persisted for three-and-a-half months up to the date of dismissal. In carrying out that assessment what the tribunal in fact had regard to and, in my judgment, attached material weight to was that it was the workplace that was causing the anxiety and that once she left the workplace there was no reason to think that the anxiety was likely to persist. If one takes out that erroneous reasoning and considers what would have happened to the Claimant had she persisted in the workplace I find it impossible to find in the tribunal’s reasoning its assessment of whether or not the ongoing position as at the date of dismissal would have ended, when it would have ended and in what circumstances. I do not say that the burden is placed upon the Respondent (the burden is on the Claimant throughout to establish that they are a disabled person), but I do accept the Claimant’s submission that relevant questions for the tribunal to consider in assessing likelihood would be factors such as if the substantial adverse effect was persisting, when it would have been likely to have ceased and what would have made it cease. The tribunal did address that question: it decided the question on the basis that the Claimant would no longer have been in the Respondent’s employment and therefore it would not have persisted. Absent that there is a hole in the reasoning. The question is whether I can I fill that hole based on the evidence before the tribunal or the evidence as displayed by the Tribunal’s Judgment with my own conclusion as to what the outcome of this case must have been. Unfortunately, perhaps for both parties, it is, in my judgment, impossible for me to say now, reading the Tribunal’s Judgment and summary of the evidence, what the appropriate conclusion would have been in this case had the tribunal properly directed itself Therefore I am not satisfied that this is a case where the Jafri conditions are satisfied and I should confirm the decision of the tribunal.

So, I am going to allow this appeal on the basis of the error of law I have identified. Unfortunately, perhaps for both parties, it is a matter that will have to be remitted to the Employment Tribunal to be heard again, because I am not confident as to what the answer would have to be on the basis of the evidence that was put before the tribunal.

Having given judgment allowing this appeal on ground 1 and remitting it to the employment tribunal I heard counsel’s short but helpful argument as to the exact scope of the remission. The element of the tribunal’s decision that has been successfully subject to appeal is the tribunal’s treatment of the question of (and I am reading from the heading just above paragraph 20 of the tribunal’s decision), “Was the impairment long-term, did it last 12 months or was it likely to last more than 12 months?” and the tribunal’s conclusion at paragraph 21: “I did not consider that the evidence established the claimant’s impairment had lasted 12 months or was likely to do so . The tribunal’s decision that the impairment had not lasted 12 months as at the date of dismissal is unassailable and is not subject to appeal in any event. The conclusion that the impairment was not likely to last for 12 months, applying the test of whether this was something that could well happen, is the conclusion in relation to which I have allowed the appeal. That is the question that is remitted to the Employment Tribunal for rehearing as to whether or not the effect of the Claimant’s impairment was, in the language of Schedule 1 paragraph 2 EqA, “likely to last for at least 12 months”.

So far, both parties have agreed that that is the effect of my decision. The question raised between the parties is the relevance of recurrence. Schedule 1 sub-paragraph 2(2) says:

Although there is some reference to recurrence in the language of the tribunal, I accept Mr Ohringer’s submission that the case was not put on the basis that there had been an impairment that had ceased but that was likely to recur. Indeed the Claimant’s case was that the effects of the impairment were continuing at the date of the dismissal and onward. So, recurrence does not seem to have been the issue before the tribunal. If there had been no cessation of the effects prior to the date of termination then the only question is whether looking forward as to what was likely happen. The Respondent’s narrower formulation of the question to be remitted is whether the effect of the impairment as it stood at the date of dismissal was likely to continue for a period in total of 12 months. The Claimant’s wider formulation poses an additional question of whether it may have ceased and whether it is likely to recur.

It seems to me on the basis that the claim appears to have been put on the narrower formulation, and in an event the tribunal is going to have to carry out an assessment of how the position appeared to be in September 2019, I should remit on the basis of the way in which the claim was formulated and advanced below. I prefer the narrower formulation, and the case is remitted for the tribunal to determine whether the effect of the Claimant’s impairment as at the date of each relevant act of discrimination was likely to last for at least 12 months.