MRS R SWIFT v CHIEF CONSTABLE OF WILTSHIRE CONSTABULARY [2004] UKEAT 0484_03_1802

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0484_03_1802Case No Appeal No. UKEAT/0484/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS R SWIFTAPPELLANTCHIEF CONSTABLE OF WILTSHIRE CONSTABULARYRESPONDENT
Before
His Honour Judge Richardson Mr P R A JacquesDate 18 February 2004
[1]APPEARANCES For the Appellant MR J LADDIE (of Counsel) Instructed by: Disability Rights Commission 2nd Floor, Arndale House The Arndale Centre Manchester M4 3AQ For the Respondent MR J LIVESEY (of Counsel) Instructed by: Messrs Veale Wasbrough Solicitors Orchard Court Orchard Lane Bristol BS1 5WS HIS HONOUR JUDGE RICHARDSON This is an appeal against a Decision of the Employment Tribunal sitting in Bristol for which Extended Reasons were entered in the register on 25 April 2003.[2]The appeal concerns the application of paragraph 2.2 of Schedule 1 of the Disability Discrimination Act 1995 .[3]Mrs Swift complained that her employers, the Wiltshire Constabulary ("the Constabulary"), had discriminated against her by failing to make adjustments in her workplace between July 2002 and October 2002. She submitted that during this period she remained a disabled person within the meaning of section 1 of the 1995 Act. The Tribunal rejected her case, holding that she had not proved she was disabled after the beginning of July 2002. Against that Decision she appeals. The facts[4]Mrs Swift was employed by the Constabulary as a Civilian Communications Officer. Her case was that two other members of staff, whom we shall call "C" and "Y", harassed and bullied her. She was off work from February to April 2001, and again from 3 February 2002 to 3 July 2002. When she returned to work she was put on recuperative duties. She requested that she should not be required to work alongside C or Y. Although she was in a different team, duty rosters occasionally overlapped. The Tribunal found that Mrs Swift was left to adapt the roster by negotiation with other workers. No individual shift pattern was worked out for her. She was rostered to overlap with C and Y on thirteen occasions. She made arrangements to avoid this where she could. In the result she overlapped with them on five occasions, once for a four hour period.[5]Mrs Swift presented an Originating Application alleging disability discrimination. At first her case was put widely, asserting discrimination in various ways between January 2001 and September 2002. By the time of the hearing her sole remaining allegation was that between July and October 2002 the Constabulary discriminated against her by failing to make reasonable adjustments to her shift pattern.[6]In preparation for the hearing the parties commissioned a joint expert report from Dr D G Stevens, a Consultant in Adult Psychiatry. He concluded that Mrs Swift was suffering from a recognised psychiatric condition from approximately January 2001 to mid 2002. The condition was described as a "moderately severe adjustment reaction with predominate symptoms of low mood and anxiety". He concluded that between those dates, it appeared there were substantial and long-term adverse effects on her ability to carry out normal day-to-day activities. It was her memory and concentration which were affected.[7]After mid-2002, he said, a formal psychiatric diagnosis was not appropriate. We shall return to his findings concerning this period later in our judgment.[8]At the hearing the Constabulary admitted that Mrs Swift became a disabled person within the meaning of section 1 of the 1995 Act in January 2001. Mrs Swift conceded that the impairment resulting from her illness had ceased to have a substantial adverse effect on her ability to carry out normal day-to-day activities in July 2002, when she returned to work.[9]Mrs Swift sought to establish that she was still a disabled person during the period between July and October 2002 by reliance upon paragraph 2.2 of Schedule 1 of the 1995 Act. If she remained disabled, then potentially the Constabulary might have a duty to make adjustments in accordance with section 6 of the 1995 Act. Her case was not put on the basis of past disability (see section 2 of the 1995 Act, and the modifications to section 6 set out in Schedule 2 to the Act). We record this for clarity, and express no view as to whether the case could have been pursued successfully on the basis of past disability. The 1995 Act and the guidance[10]Section 1 of the 1995 Act provides:
"Meaning of "disability" and "disabled person". 1. - (1) 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. (2) In this Act "disabled person" means a person who has a disability."
[11]Section 3 provides that the Secretary of State may issue guidance about matters to be taken in to account in determining whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day tasks, and whether such an impairment has a long term effect. Where such guidance is provided, the Tribunal which determines such an issue must take into account any guidance which appears to it to be relevant.[12]Paragraph 1(1) of Schedule 1 provides 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."[13]Paragraph 2(1) of Schedule 1 provides:
"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."
[14]Paragraph 2(2) of Schedule 1 provides:
"(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."
[15]By paragraph 4(1) of 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"

[16]The Secretary of State issued guidance pursuant to section 3 of the 1995 Act in July 1996. Paragraphs B3 - 5 of the Guidance deal with recurring effects. Paragraph B3 reads:
"The Act states that if an impairment has had a substantial adverse effect on a person's ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur; that is, it is more likely than not that the effect will recur. (In deciding whether a person has had a disability in the past, the question is whether a substantial adverse effect has in fact recurred.) Conditions which recur only sporadically or for short periods (eg epilepsy) can still qualify)."
[17]Paragraph B7 states that it is likely that an event will happen if it is more probable than not that it will happen. Paragraph B5 states that the likelihood of recurrence should be considered taking all the circumstances of the case into account.[18]Within section C of the Guidance, there is extended treatment of the circumstances in which an impairment may have a long-term substantial adverse effect on normal day-to-day activities. This treatment is too extensive to quote in full. Examples are given which are "indicators and not tests" of what it would and would not be reasonable to regard as substantial adverse effects: see paragraph C10. The examples are only meant to be illustrative: see paragraph C9. Guidance is given concerning memory and ability to concentrate: see paragraph C20. The issues for the Tribunal"[19]In considering the application of paragraph 2(2) of Schedule 1 a Tribunal should, in our judgment, ask itself the following 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?[21]An impairment will have such an effect only if it affects one or more of the functions listed in paragraph 4(1) of the Schedule. Even then, the effect must have been substantial and adverse. This is for the Tribunal to assess, having regard to the guidance. Where the impairment is said to have been a mental impairment resulting from or consisting of a mental illness, the illness must have been a clinically well recognised illness. See, on the question of mental impairments, Morgan -v - Staffordshire University [2002] ICR 475 .[22]Secondly, did the impairment cease to have a substantial adverse effect on the Applicant's ability to carry out normal day-to-day activities, and if so when?[23]Asking and answering this question will ensure that paragraph 2(2) does not enter too early into the process of the Tribunal's reasoning. Paragraph 2(2) deems an impairment to continue when, and only when, it has ceased to have a substantial adverse effect on an Applicant's ability to carry out normal day-to-day activities. Until that point, the duration of an impairment's effect is assessed in accordance with paragraph 2(1) of the Schedule.[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. The question should be answered by reference to the functions set out in paragraph 4(1) of the Schedule.[26]Fourthly, is that substantial adverse effect likely to recur?[27]This is the question which must be answered if paragraph 2(2) is to come into play. The Tribunal must be satisfied that the same effect is likely to recur and that it will again amount to a substantial adverse effect on the Applicant's ability to carry out normal day-to-day activities.[28]In this context a substantial adverse effect is "likely to recur" if it is more probable than not that the effect will recur. See paragraph B7 of the guidance and Latchman -v- Reed Business Services [2002] ICR 1453 .[29]Whether a substantial adverse effect is "likely to recur" is by no means necessarily determined by medical evidence, although medical evidence is of high importance. The medical evidence may point to circumstances in which the substantial adverse effect is likely to recur. If so, the Tribunal will have to consider in practice how likely it is that those circumstances will occur. The Tribunal will also take into account what is said in paragraph B5 of the Guidance.[30]Often in answering this question, the Tribunal will be looking to the future. The relevant date will be the date when the Tribunal is hearing the case. Sometimes, however, the date will be a date in the past, because the parties will pose for the Tribunal the question whether an applicant continued to have a disability at a particular time. The present case is such a case. Mrs Swift's argument was not that between July and October 2001 she had a past disability. Her case was that during that period she had a present disability. In considering whether during a particular period in the past, a substantial adverse effect was likely to recur a Tribunal is of course entitled to look at the evidence of what occurred during that period. In particular if it is said that an effect was likely to recur because certain circumstances would be likely to trigger it, a Tribunal is entitled to consider whether those circumstances occurred during the period and whether the substantial adverse effect did recur. Such evidence is not necessarily conclusive. It is for the Tribunal to assess.[31]Although the Tribunal must be satisfied that the substantial adverse effect is likely to recur, it need not be satisfied that the recurrence is likely to last for at least twelve months. The effect of paragraph 2(2) is that the impairment is treated as continuing for as long as its substantial adverse effect is likely to recur. So, even if the impairment has ceased to have a substantial adverse effect, it "lasts" for the purpose of paragraph 2(1) for as long as its substantial adverse effect is likely to recur. Must the mental illness recur?[32]On behalf of the Constabulary Mr Livesey submitted that the Tribunal must also be satisfied, in the case of an impairment resulting from or consisting of a clinically well recognised mental illness, that the mental illness itself is likely to recur. If this were not a requirement of the Act, he submits, then symptoms which had nothing to do with the mental illness might result in the operation of paragraph 2(2). For example, he asks, suppose that nightmares were a symptom of the mental illness which caused a substantial adverse effect. Nightmares may occur for reasons which have nothing to do with a mental illness. Yet it surely cannot have been the intention of Parliament that unrelated nightmares should be taken into account for the purposes of paragraph 2(2).[33]In our judgment, accepting the submission made in this respect by Mr Laddie, on behalf of Mrs Swift, it is not in and of itself a requirement of paragraph 2(2) that the clinically well recognised mental illness should be likely to recur. This is not an express requirement of paragraph 2(2), nor in our judgment is it necessary to spell such a requirement into paragraph 2(2) by any process of interpretation.[34]In our judgment, the 1995 Act contemplates that an illness, physical or mental, may run its course to a conclusion but leave behind an impairment. This is why paragraph 1(1) of Schedule 1 provides that "mental impairment" includes an impairment resulting from a clinically well recognised mental illness. Once an illness ceases, and an impairment from the illness ceases to have a substantial adverse effect, it will no doubt generally be the case that the substantial adverse effect will recur only if the illness recurs. So it will always be relevant for the Tribunal to consider whether the illness is likely to recur. But it is possible to envisage circumstances where an impairment resulting from an illness may again have a substantial adverse effect without the illness itself recurring. There may, for example, be a change in surrounding circumstances which increases the effect of the impairment. The question for the Tribunal is whether the substantial adverse effect is likely to recur, not whether the illness is likely to recur.[35]Mr Livesey's argument is sufficiently met by the requirement of paragraph 2(2) that the effect must be a recurrence of the earlier effect. A substantial adverse effect resulting from a different impairment not the consequence of the well recognised illness would not properly be described as a recurrence. The criticisms of the Tribunal[36]The Employment Tribunal's Decision was criticised in two ways. Firstly, it was said that the Tribunal applied the wrong test. Secondly it was submitted that the Tribunal was perverse in failing to find on the evidence that Mrs Swift continued to be a disabled person by virtue of the operation of paragraph 2(2). In order to consider these arguments it is necessary briefly to summarise the evidence before the Tribunal and then turn to the Tribunal's Decision. The evidence before the Tribunal[37]Dr Stevens recorded what Mrs Swift said to him about her emotional state after her return to work. She said that if she found she was on the same shift as C or Y she would sleep poorly and have a nauseated feeling. She also said that if she did not have contact with C or Y she could perform her work properly. She described incidents out of work where she had received calls to her mobile in the middle of the night and where a taxi had come which she had not ordered. These, she said, made her feel anxious and affected her sleep. There was no specific reference to memory or concentration in her account of her symptoms during this period.[38]Dr Stevens said at the conclusion of his report:
"4. Ms Swift has been able to return to work since July 2002 and is relatively asymptomatic except when faced with the individuals concerned and any perceived harassment. She is very sensitive to anything that might be further harassment and may well interpret innocent events as being sinister. 5. I do not feel that a formal psychiatric diagnosis is appropriate since mid 2002 but I acknowledge that she still feels intermittently distressed to the point of panic from time to time. 6. Given that Ms Swift is at work, appears not to have been off sick since mid 2002, and she is able to cope with her domestic life without significant impairment, it is difficult for me to state that there are currently "substantial and long term adverse effects on her ability to carry out normal day to day activities"
. However this does appear to have been the case between approximately January 2001 to mid 2002. 7. In terms of the definition of "impairment", I believe that she was unable to carry out normal day to day activities by virtue of "memory or ability to concentrate, learn or understand". Between approximately January 2001 to mid 2002, her memory and concentration were adversely affected by the Adjustment Reaction I have described. 8. In terms of the degree of impairment, there were clearly times when she was unable to perform the activities required of her at work and these were when she had periods off sick. However, there were other times when she could perform these duties but "only with difficulty". I believe she has been able to perform her work without this degree of difficulty since mid 2002. If there had been times of difficulty since mid 2002, they have been short lived and she has been able to alter her shifts to cope with any distress. Ms Swift's symptoms would return to the point of "impairment" if she had to work with the alleged perpetrators of the harassment."[39]In her witness statement to the Tribunal Mrs Swift described having "panic attacks causing sleep deprivation". She referred to an occasion when she had been physically sick and extremely stressed at the prospect of having to work in close proximity to X or Y. She referred to panic attacks, insomnia, nausea and chronic fatigue. She did not say anything specific concerning memory, concentration or effect on normal day-to-day activities.[40]Her evidence before the Tribunal was to broadly similar effect. She said she had panic attacks which prevented her from sleeping well. She said her performance the following day might be affected if she did not sleep well. She said that if in a working environment with the alleged perpetrators she would not work as effectively or well. The Tribunal's Decision[41]The Tribunal correctly set out the terms of paragraph 2(2) of Schedule 1 to the 1995 Act in paragraph 10 of their Decision. We will quote the next two paragraphs of the Tribunal's Decision, adding to certain phrases, underlining of our own. "11 The applicant's evidence is that since July 2002 she has, on occasions, had to work with Mrs Cargill or Miss Fisher, but that her symptoms have not returned. There have been, it is true, intermittent panic attacks as referred to by Dr Stevens in paragraph 5 of his conclusions, but not any long-term disability . We accept that if the respondents were to abandon their personnel responsibilities entirely and insist that she worked the full overlap each time is occurred in the roster then there is a risk that the disability would return. We do not, however, regard Dr Stevens' remark as indicating that if she ever had to work with the others for an individual period, the condition would return. Indeed, if he is saying that, it is not borne out by the facts. The applicant's own view that there is a risk of a recurrence if she has to work with C and Y in the future is not a sufficient basis for us to find that the impairment is likely to recur. 12 We have come to the conclusion, therefore, that the applicant has failed to show that her disability is likely to recur."[42]The Tribunal, having correctly directed itself to the words of paragraph 2(2), has used different terminology in stating its reasons. Accurate use of terminology is highly desirable when a Tribunal is formulating reasons for a decision in respect of the 1995 Act. As Mummery LJ said in Clark -v- T G Ltd t/a Novacold it is "an unusually complex piece of legislation which poses novel questions of interpretation". Care is therefore required in the use of its terminology. But the terminology is not easy to handle. "illness" "impairment", "effect" and "disability" are words whose meanings shade into one another. Indeed, psychiatric conditions are often diagnosed in terms of their effect. Inappropriate use of terminology does not necessarily mean that a Tribunal has erred in law. It does, however, require close examination. Where a Tribunal uses inappropriate terminology it may have failed in its duty to demonstrate by its reasons that it has properly applied the law.[43]Inexact terminology is manna from Heaven for an appellate advocate, and Mr Laddie fell on it with enthusiasm. His argument had essentially two steps.[44]Firstly, he pointed out that the Employment Tribunal on three occasions referred to "disability". It spoke of the risk that the disability might return. It said that the Applicant had failed to prove that her disability was likely to recur. This, he correctly says is not the statutory test. The statutory test is whether the substantial adverse effect is likely to recur.[45]Secondly, he says that in referring to "disability" the Employment Tribunal has imported the notion that the effect of an impairment must be long term as defined in paragraph 2.1 of the Decision. He derives support from the Employment Tribunal's reference to intermittent panic attacks but "no long term disability". He says it is clear that the Employment Tribunal has fallen into the error of thinking that any recurrence of the impairment must itself be long term.[46]On behalf of the Constabulary, Mr Livesey submits that the Employment Tribunal has used the word "disability" in place of the full legal definition in paragraph 2(2) of the Act. He submits that it has not fallen into error but merely truncated the full legal definition in giving its Reasons.[47]We have anxiously considered the passage which we have quoted from the Employment Tribunal's Decision. As we have said, the terminology used by the Tribunal is loose – and close examination is required before we are satisfied that there is no error of law. In the result we agree with Mr Livesey. We do not think that the Employment Tribunal erred in law. Our reasons are as follows.[48]In paragraph 10 of its Decision the Employment Tribunal has correctly set out the test it had to apply. In our judgment it is plain that in paragraphs 11 and 12 it has used the term "disability" as shorthand for the concept of substantial adverse effect on ability to carry out normal day-to-day activities. The reference to "symptoms" in paragraph 11 is consistent with this view. In one sense a panic attack is a symptom; but the Tribunal was concerned with a substantial adverse effect in memory or ability to concentrate. Hence the reference to "symptoms" in a sense which excludes a panic attack per se. In paragraph 11 the Employment Tribunal used a variety of phrases to express itself as it set out its conclusions. A more structured approach in its use of language would have been preferable, but we do not think the Employment Tribunal lost sight of the correct test, which it had set out in paragraph 10 of the Decision.[49]Nor do we accept that the Employment Tribunal has fallen into the error of considering that the recurring effect had to be a long term effect of the kind set out in paragraph 2(1). It is true that the Employment Tribunal used the phrase "long term disability". It would have been better if it had found another phrase. But, in context, we are quite satisfied that the Employment Tribunal was pointing to the short-term transient nature of the panic attacks to which it was referring. Mrs Swift had to establish that there was likely to recur an impairment which affected memory or ability to concentrate to the extent that it had a substantial effect on her ability to carry out normal day-to-day activities. An occasional panic attack or consequent sleepless night would not necessarily have such an effect. The Guidance at C7 and C20 sets the threshold higher than this and (in our view) an Employment Tribunal is entitled to look at the practical effect of a panic attack or a sleepless night. This, we have no doubt, was the point the Employment Tribunal was making. We do not think for a moment that the Employment Tribunal considered that the substantial effect, still less the psychiatric condition itself, had to recur for at least twelve months. Either of these would have been knock-down points to make, for on no possible interpretation of the last sentence of his report could Dr Stevens be said to have given an opinion that any recurrence would last for twelve months.[50]We therefore reject the argument that the Employment Tribunal applied the wrong test. Having carefully scrutinised the Tribunal's Decision we are satisfied that they stated and applied the right test. Perversity[51]Mr Laddie submitted that on the evidence the impairment had actually recurred during the period from July to October. He submitted that the Tribunal's finding that she had suffered from panic attacks (as the Tribunal specifically accepted) and nausea, tiredness and loss of sleep (as she told Dr Stevens) must amount, albeit transiently, to a substantial adverse effect on her ability to carry out normal day-to-day activities. The Employment Tribunal was therefore perverse in failing to conclude that the impairment was likely to recur during the relevant period, for, he submitted, it had recurred.[52]We reject this submission. When a person is recovering from a psychiatric condition there will frequently be short lived symptoms. It does not follow that short lived symptoms amount to a substantial adverse effect on the person's ability to carry out normal day-to-day activities in the way that they did while the psychiatric condition itself persisted. It will be a question for assessment in each case. We do not think the Employment Tribunal was bound to hold that such an impairment had occurred or was likely to recur.[53]Mr Laddie also places reliance on the last sentence of Dr Stevens' report where he stated his opinion that Ms Swift's symptoms would return to the point of "impairment" if she had to work with the alleged perpetrators of the harassment.[54]We make two observations about this sentence, which must be read in the light of Dr Stevens' reference to adverse effect on memory and concentration in paragraph 7 of his report.[55]Firstly, it demonstrates that Dr Stevens did not regard the impairment as having recurred already by virtue of the symptoms Ms Swift had described, so it is inconsistent with Mr Laddie's argument that the Employment Tribunal was bound to hold, that the substantial adverse effect had occurred.[56]Secondly, we have no doubt that the Employment Tribunal read Dr Stevens' report correctly. In context he was not saying that any work with the alleged perpetrators would bring on the impairment. He was well aware that Ms Swift had worked with them on overlaps during the period after July. But he had expressly said that the substantial adverse effect on memory and concentration had continued only between January 2001 and mid 2002.[57]For these reasons we conclude that there is no error of law in the Employment Tribunal's Decision. We dismiss this appeal.