MS E MCDOUGALL v RICHMOND ADULT COMMUNITY COLLEGE [2007] UKEAT 0589_06_1307

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0589_06_1307Case No Appeal No. UKEAT/0589/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS E MCDOUGALLAPPELLANTRICHMOND ADULT COMMUNITY COLLEGERESPONDENT
Before
His Honour Judge McMullenDate 13 July 2007
[1]APPEARANCES For the Appellant Mr J E Petts (of Counsel) Free Representation Unit 6th Floor 289-293 High Holborn London WC1 7HZ For the Respondent Mr A Ohringer (of Counsel) Instructed by: Oriel House 52-54 Coombe Road New Malden Surrey KT3 4QP SUMMARY Disability discrimination - Disability Compulsory admission of a patient under the Mental Health Act is not automatically a disability under the DDA 1995. In the circumstances of this case the severity of the Claimant's condition did mean she had an impairment with a substantial adverse effect on day-to-day activities. In determining whether or not a condition is likely to recur for the purposes of the assessment of disability under the DDA 1995, 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. Bwllfa and Merthyr v Pontypridd Waterworks Company [1903] AC 426 HL and Golden Strait Corporation v Nipong Yusen 2007 UKHL 12 applied. On the issue of whether the Claimant'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 and that such was a mental impairment within the meaning of the Act. HIS HONOUR JUDGE McMULLEN QC This case concerns the definition of mental impairment having a substantial and long term adverse effect on the ability of a person to carry out normal day-to-day activities within the meaning of section 1 of the Disability Discrimination Act 1995 . The judgment represents the views of all three members. It has been delayed to enable the parties to make submissions on Golden Strait Corporation v Nipong Yusen 2007 UKHL 12 , 28 March 2007. We will refer to the parties as the Claimant and the Respondent. Introduction[2]It is an appeal by the Claimant in those proceedings against a reserved judgment of an Employment Tribunal sitting at London (South), Chairman Ms N Amin, registered with reasons on 19 July 2006. The Claimant was represented by Mr James Petts of Counsel providing his services under the aegis of the Free Representation Unit. The Respondent was represented today by Mr Adam Ohringer and at the Employment Tribunal by different Counsel. The Claimant claimed unlawful disability discrimination and breach of contract. The Respondent contended she was not disabled and took issues on the merits. The Tribunal decided in her favour on the contract; the award of one month's pay by way of damages is not appealed. The Tribunal dismissed her claim of discrimination holding that she was not disabled. She appeals. Directions sending the appeal to a full hearing were given by Elias J (P) on a renewed application from HHJ Ansell. The legislation[3]The relevant provisions of the legislation were set out by the Employment Tribunal and have not been challenged. The provisions include the statute and guidance issued under it which is to be taken into account. Section 1 of the Act defines disability as follows:- "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.[4]The definition in section 1 is expanded by Schedule 1. Impairment is defined in the following way:- "1(1) "Mental impairment" includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically or well recognised illness." That provision was in force at times relevant to this case but was repealed on 6 December 2005.[5]As to long-term effect and substantial adverse effect, schedule 1 provides in relevant part:- "Long-term effects 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 out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. Normal day-to-day activities 4.-(1) An impairment is to be taken to affect the ability of the person concerned to carry out the normal day-to-day activities only if it affects …- … (g) memory or ability to concentrate, learn or understand; … Substantial adverse effects 5. Regulations may make provision for the purposes of this Act- (a) for an effect of a prescribed kind on the ability of a person to carry out normal day-to-day activities to be treated as a substantial adverse effect;"[6]In fact, Guidance (see below) not regulations, deal with the above. Schedule 2 deals with the definition of disability for the purposes of someone who has had a disability and these are known as past disabilities, which are not relevant here.[7]Section 68(1) contains the following definition:- " Mental impairment" does not have the same meaning as in the Mental Health Act 1983…but the fact that an impairment would be a mental impairment for the purposes of [that] Act does not prevent it from being a mental impairment for the purposes of this Act." The Mental Health Act 1983 defines the circumstances in which a patient may be admitted for treatment:- "Admission for treatment 3(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as "an application for admission for treatment") made in accordance with this section.(2) An application for admission for treatment may be made in respect of a patient on the grounds that- (a) he is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and (b) in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and (c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section. General provisions as to medical recommendations 12 (1) The recommendations required for the purposes of an application for the admission of a patient under this Part of this Act (in this Act referred to as "medical recommendations") shall be signed on or before the date of the application, and shall be given by practitioners who have personally examined the patient either together or separately, but where they have examined the patient separately not more than five days must have elapsed between the days on which the separate examinations took place."[8]The Guidance to be taken into account pursuant to section 3 of the 1995 Act issued by the Secretary of State contains the following:- "Meaning of 'substantial' adverse effect Al The requirement that an adverse effect be substantial reflects the general understanding of 'disability' as a limitation going beyond the normal differences in ability which may exist among people. A 'substantial' effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects. A 'substantial' effect is one which is more than 'minor' or 'trivial'" C5 In many cases an impairment will adversely affect the person's ability to carry out a range of normal day-to-day activities and it will be obvious that the overall adverse effect is substantial or the effect on at least one normal day-to-day activity is substantial. In such a case it is unnecessary to consider precisely how the person is affected in each of the respects listed in paragraph C4. For example, a person with a clinically well-recognised mental illness may experience an adverse effect on concentration which prevents the person from remembering why he or she is going somewhere; the person would not also have to demonstrate that there was an effect on, say, speech….. C9 In deciding whether an effect on the ability to carry out a normal day-to-day activity is a substantial adverse effect, account should be taken of factors such as those mentioned under each heading below. The headings are exhaustive-the person must be affected in one of these respects. The lists of examples are not exhaustive; they are only meant to be illustrative. The assumption is made in each example that there is an adverse effect on the person's ability to carry out normal day-to-day activities. A person only counts as disabled if the substantial effect is adverse. C20 Account should be taken of the person's ability to remember, organise his or her thoughts, plan a course of action and carry it out, take in new knowledge, or understand spoken or written instructions. This includes considering whether the person learns to do things significantly more slowly than is normal. Account should be taken of whether the person has persistent and significant difficulty in reading text in standard English or straightforward numbers Meaning of "likely" B7. It is likely that an event will happen if it is more probable than not that it will happen. B8. In assessing the likelihood of an effect lasting for a period, account should be taken of the total period for which the effect exists. This includes any time before the discriminatory behaviour occurred as well as time afterwards. Account should also be taken of both the typical length of such an effect on an individual, and any relevant factors specific to this individual (for example, general state of health, age)," The issues[9]The Employment Tribunal decided that the Claimant was not disabled because her condition did not cause a substantial impairment in her normal day-to-day activities and the impairment was not long term. In order to succeed in the appeal, Mr Petts accepts that he must overturn both findings. The issue was refined by the Employment Tribunal in the following way:- "1. By a Claim Form presented on 4 July 2005 Ms McDougall complained of disability discrimination and breach of contract (failure to pay notice pay). The disability claim was that "at all times between 21 February 2005 and 22 April 2005, the Claimant had a disability in that she had had in the past a qualifying disability (personality delusional disorder) further or alternatively, in that she would have had a disability but for the fact that she was taking medication that disability being schizo-affective disorder, a clinically well recognised psychiatric illness. 2. The Claimant was offered work on 30 March 2005 as a database assistant subject to references and health clearance and was due to commence work with the Respondent on a date to be agreed. On 22 April 2005 the offer was withdrawn by the Respondent on the ground that the Occupational Health Report had not cleared the Claimant as fit to work. The Respondent denied that the Claimant was disabled within the meaning of Section 1 of the DDA, 1995. In any event, the offer of employment was conditional upon receiving satisfactory references and medical health clearance and the Claimant failed to meet the health clearance condition." There are two problems with paragraph 1 above. The reference to "personality delusional disorder" is not taken from the amended claim form and there appears to be a simple formatting error in the typing of the judgment. Having seen how the Tribunal deals with this matter elsewhere in its judgment, and the source of the medical diagnosis, we are confident that the reference is to "persistent delusional disorder". This will become important when we examine the authorities. In the above formulation, it looks as though the Claimant is making a claim that she is disabled for she had in the past had a disability which is likely to recur. This is indeed one of the issues recorded by the Employment Tribunal. But it does not determine the case on that basis, and that case is not pursued on appeal. The facts[10]The Claimant has a history of mental illness. She applied for a position as a database assistant at the Respondent which is a community college in South West London. She was successful at a competitive interview and was offered the position on 1 April 2005, subject to satisfactory medical clearance and other matters. The offer was withdrawn on 22 April 2005 on the grounds that the medical clearance was not available. The Tribunal found that this was a breach of contract. It found that she had a persistent delusional disorder and a schizo-affective disorder, that these were clinically well recognised and that she had a mental impairment within the meaning of the then extant paragraph 1(1) of schedule 1 to the DDA 1995. That is not appealed. However, the Tribunal stopped short at finding that the Claimant is disabled within the meaning of the Act, for her mental impairment did not have a substantial and long term adverse effect on her ability to carry out normal day-to-day activities.[11]The bare facts of the Claimant's medical history indicates a medical assessment in 1995 for unspecified mental health problems, depression in 1997 following the birth of her first child, psychiatric treatment in 2001 and mental illness at that time following the birth of her second child. Between 1 November 2001 and 25 February 2002 the Claimant was compulsorily admitted under the terms of the Mental Health Act ("sectioned") to Queen Mary's Hospital and then discharged into the care of Dr Megan Roberts consultant psychiatrist. In August 2005 she had a relapse and on 23 December 2005 she was again sectioned.[12]The Employment Tribunal said this: 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 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 Claimant's submissions[13]On behalf of the Claimant, Mr Petts submits that compulsory detention meeting the requirements of the Mental Health Act 1983 is conclusive evidence of substantial adverse effect for the purposes of the DDA. In any event, in the Claimant's case the condition described by her consultant was of such severity as to qualify under the DDA, relating to her persistent delusions. Such condition made it necessary for her to be detained for her own or others' safety. This corresponds to the circumstances in Goodwin v The Patent Office [1999] ICR 302 (schizophrenia). The Tribunal in any event failed to make any conclusive finding as to the undisputed evidence relating to the Claimant's compulsory admission under the Mental Health Act .[14]Secondly, it is contended that compulsory admission under the Mental Health Act is in itself a restriction on one's ability to carry out every day activities and has a substantial adverse affect thereon.[15]Thirdly, assuming the Claimant succeeds on one or other of the above arguments, the effect was long term. The Tribunal concluded that there was no likelihood of a recurrence as at the date of the acts complained of (April 2005). Since there had been a relapse in August 2005 and compulsory re-admission under the Mental Health Act in December 2005, the Tribunal erred in failing at the very least to consider, and at its highest to be conclusively guided by those facts. The principal argument addressed by Mr Petts is based upon the Bwllfa principle, Bwllfa and Merthyr v Pontypridd Waterworks Company [1903] AC 426 HL. This has been endorsed by the House of Lords in Golden Strait Corporation v Nipong Yusen 2007 UKHL 12 , 28 March 2007. The EAT was correct in the judgment of HHJ Peter Clark and members in Greenwood v British Airways PLC [1999] ICR 969 . In considering a recurrence of the Claimant's depression following the statutory tort, it was contended that the judgment in Latchman v Reed Business Information Ltd [2002] ICR 1453 62 Lindsay J (P) and members incorrectly distinguished the Bwllfa principle from the principle to be applied under the DDA. The correct approach in tort as in statutory torts is that set out in Curwen v James and Others [1963] 1WLR 713 CA. The Respondent's submissions[16]On behalf of the Respondent it is contended that the Tribunal considered all the relevant activities including the Claimant's own evidence. It is conceded that an admission to hospital under section 3 of the Mental Health Act is evidence of serious mental impairment. But that gives no indication as to whether or not there has been a substantial effect on the patient's "ability to concentrate, learn or understand".[17]Secondly, the Claimant's second argument, that admission to hospital is in itself a substantial adverse effect, is misconceived. It is conceded that admission adversely affects a person's liberty but does not affect an "ability to concentrate, learn or understand".[18]Thirdly, the Tribunal having found that the mental impairment existed for eight months in 2001-2002, the impairment could not have been long term. The principal contention is that the Tribunal must come to a conclusion as to what was likely at the date of the discriminatory act in 2005. It is acknowledged that material thereafter is relevant, but only as to the question whether or not it was likely at the date of the tort that there would be a recurrence of the condition. In further submissions it is contended that the Bwllfa principle as affirmed in Golden Strait , is not applicable to cases under the DDA. Discussion and conclusions Substantial adverse effect[19]The first issue for the Employment Tribunal to decide was whether a person who was compulsorily admitted to hospital under section 3 of the Mental Health Act 1983 suffered from a mental illness which had such an effect as to qualify her as disabled under the DDA 1995. As a matter of law, satisfaction of the conditions in the Mental Health Act is not necessarily satisfaction of the conditions for disability under the DDA. There is no necessary read-over from one to the other. When Parliament enacted the definition in section 68(1) it was alert to the relationship between the two statutes, and the definition of mental impairment for their separate purposes. The negative way in which this subsection is drafted - "does not prevent it from being a mental impairment" - makes it look as though mental impairment under the Mental Health Act must struggle to be a mental impairment under the DDA. Yet one must be considered as relevant to the other. It would have been possible to use a common definition or to apply automatically the former to the latter. We therefore reject the contention that mental disorders falling within the Mental Health Act , must necessarily meet the conditions in the DDA.[20]However, in the light of the medical report on the severity of the delusion of the Claimant, which was sufficient for the medical practitioners under the MHA to require her forcibly to be detained, she plainly had a mental illness under the DDA. The list of conditions diagnosed by the Claimant's specialists constituted, in our judgment an impairment in the Claimant's ability to "understand". How could a deficiency constituting the illness of persistent delusion in medical terms be otherwise? A person who does not understand the real world is deluded and that constitutes an impairment of her ability to understand. The Claimant hallucinated and had paranoid ideation about those around her. She did not even understand that she had been admitted for mental illness and denied there was anything wrong with her. We are satisfied that this matter was fully canvassed before the Employment Tribunal as a ground constituting the Claimant's mental impairment. This was clearly substantial and adverse so as to require her to be committed forcibly to a mental institution. It follows that we accept the submission that the Claimant as a result of a clinically well recognised condition had an impairment to her understanding, that is delusions.[21]A similar issue was faced by the Tribunal in Goodwin v The Patent Office [1999] ICR 302 . There, the EAT overturned an Employment Tribunal and substituted a finding that the Claimant was disabled. Morrison J (P) said the following. "It seems to us most surprising that any Tribunal should conclude that a person admittedly diagnosed as suffering from paranoid schizophrenia and who had been dismissed partly because of what one might call bizarre behaviour consistent with that diagnosis falls outside the definition…"[22]Given our finding on the above, it is not necessary for us to make a decision in relation to the second submission. However, we would observe that it would be most unlikely that a person who was detained in a mental institution could carry out her day-to-day activities. She simply was not at liberty to do that. The reason why she was not at liberty so to do was because of a mental impairment satisfying the conditions under section 3 of the Mental Health Act . She was detained for her own health and safety and that of others. To be detained in a secure institution under the MHA necessarily involves a restriction on the Claimant's day-to-day activities. Her mental condition triggered the statement from the medical practitioners; that caused her to be detained; and that restricted her day-to-day activities. It could not sensibly be maintained that a person detained on the ground of the conditions under the MHA was able to carry out her day-to-day activities. Such detention was on account of the Claimant's mental impairment. If it were necessary for us to decide this matter we would be inclined to accept the Claimant's submissions. In any event there is force in Mr Petts' argument that the Employment Tribunal did not give sufficient reasons in response to these two arguments. Long-term effect[23]We then go on to decide whether or not the condition was of long-term effect. As to this the Tribunal gave its conclusion in para 53 cited above. Given the recrudescence of the Claimant's condition in August and her re-admission to hospital pursuant to the Mental Health Act in December 2005, all occurring before the Employment Tribunal hearing, the Tribunal should have considered those matters when considering whether the condition was likely to recur. The source authority is Bwllfa and Merthyr v Pontypridd Waterworks Company [1903] AC 426 HL where Lord Macnaghten said the following 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 information at hand at the time of making his award which may be laid before him. Why should he listen to conjecture on a matter which has become an accomplished fact? Why should he guess when he can calculate? With the light before him why should he shut his eyes and grope in the dark?"[24]That was a contract case. After the hearing of our case, this principle has been affirmed 100 years later by the House of Lords in a majority judgment upholding an arbitrator, in Golden Strait (above). In the majority, Lord Brown of Eaton-under-Heywood summarised the facts: [69] The basic facts of this case could hardly be simpler. On 17 December 2001 the Appellant owners accepted the Respondent charterers' repudiation of a charterparty which nominally still had nearly four years to run – to 6 December 2005. I say "nominally" because by cl 33 of the charterparty the charterers were entitled to cancel it in the event of war or hostilities breaking out between any two or more of a number of countries including the USA, the UK and Iraq. On 20 March 2003, such a war (the Second Gulf War, hereafter "the War") did indeed break out and the arbitrator has found as a fact that the charterers would in any event then have cancelled the charterparty. [70] Indisputably the owners are entitled to damages for having been deprived of the value of this charterparty for the fifteen months or so up to the outbreak of the War. Are they, however, entitled, as they claim, to be compensated on the basis that the charterparty would have continued for the whole length of its nominal term? [71] The owners advance their argument by reference to the familiar principle that damages for breach of contract ordinarily fall to be assessed as at the date of the breach (the breach date rule as it was called in argument). They submit that that principle is applicable here and that the assessment of damages must accordingly ignore the outbreak of the War. That, it is argued, is a subsequent event of no relevance to the proper assessment of the owner's loss in December 2001. Indeed, even had there existed in December 2001 a very substantial risk of imminent war in the Gulf, the owner's principal argument would require it to be ignored: only if it could be shown that by that date war was inevitable – "pre-destined to happen" in the words of Megaw LJ in The Mihalis Angelos [1971] 1 QB 164 (in the passage cited by my noble and learned friend Lord Bingham of Cornhill at para 14) – could it be brought into account to ensure that:
"the damages which [the owners] can recover are not more than the true value, if any, of the rights which [they have] lost, having regard to those pre-destined events" (again the words of Megaw LJ in the same passage). The charterers submit to the contrary that, whilst certainly (given the availability of a market for the vessel's period chartering) the breach date rule would operate in this case to fix the daily net differential base charter rate, it should not determine either the period for which that loss was suffered or the date for assessing that period. [72] A single issue has been formulated by the parties for your Lordships' determination on the appeal: "
Where damages for an accepted repudiation of a contract are claimed, in what circumstances can the party in breach rely on subsequent events to show that the contractual rights which have been lost would have been rendered either less valuable or valueless?" Lord Scott also in the majority said [38] The arguments of the Owners offend the compensatory principle. They are seeking compensation exceeding the value of the contractual benefits of which they were deprived. Their case requires the assessor to speculate about what might happen over the period 17 December 2001 to 6 December 2005 regarding the occurrence of a cl 33 event and to shut his eyes to the actual happening of a cl 33 event in March 2003. The argued justification for thus offending the compensatory principle is that priority should be given to the so-called principle of certainty. My Lords there is, in my opinion, no such principle. Certainty is a desideratum and a very important one, particularly in commercial contracts. But it is not a principle and must give way to principle. Otherwise incoherence of principle is the likely result. The achievement of certainty in relation to commercial contracts depends, I would suggest, on firm and settled principles of the law of contract rather than on the tailoring of principle in order to frustrate tactics of delay to which many litigants in many areas of litigation are wont to resort. Be that as it may, the compensatory principle that must underlie awards of contractual damages is, in my opinion, clear and requires the appeal in the case to be dismissed. I wish also to express my agreement with the reasons given by my noble and learned friends Lord Carswell and Lord Brown of Eaton-under-Heywood for coming to the same conclusion. Lord Bingham in the minority cited the principles and said [11] It is a general, but not an invariable, rule of English law that damages for breach of contract are assessed as at the date of breach. … [12] While not, I think, challenging the general correctness of the principles last stated, the charterers dispute their applicability to the present case. Their first ground for doing so is in reliance on what, from the name of the case in which this principle has been most clearly articulated, has sometimes been called "the Bwllfa principle". It is that where the court making an assessment of damages has knowledge of what actually happened it need not speculate about what might have happened but should base itself on the known facts. In non-judicial discourse the point has been made that you need not gaze into the crystal ball when you can read the book. I have, for my part, no doubt that this is in many contexts a sound approach in law as in life, and it is true that the principle has been judicially invoked in a number of cases. … I do not think it necessary to discuss these cases, since it is clear that in some contexts the court may properly take account of later events. None of these cases involved repudiation of a commercial contract where there was an available market. [13] The charterers further submit that even if, as a general rule, damages for breach of contract (or tort, often treated as falling within the same rule) are assessed as at the date of the breach or the tort, the court has shown itself willing to depart from this rule where it judges it necessary or just to do so in order to give effect to the compensatory principle. I accept that this is so. But it is necessary to consider the cases in which the court departs from the general rule.[25]It is clear from the above that the Bwllfa case is now properly acknowledged as the Bwllfa principle. It is an exception to the general rule in damages which was cited as the "so-called certainty principle" or the date of breach principle. The epithet "so-called" is now removed from the Bwllfa principle and the certainty rule now gives way to it. It has been applied in contract; in the valuation of an annuity in the administration of an estate; in insolvency proceedings; in professional negligence claims; and in personal injury claims: for all of which see paragraph 12 and 13 of Lord Bingham's judgment. The most striking example relevant to our case, and cited with approval by Lord Bingham, is Curwen v James [1963] 1WLR 748 where compensation in a fatal accident claim was assessed on the basis that the widowed Claimant would not remarry. On permission being given to introduce evidence after the trial that she had married, the damages were reassessed and reduced, Harman LJ saying this at 753:- "It seems to me that there is an important principle here involved that it is this, that the court should never speculate where it knows."[26]So the issue in the present case is whether the Bwllfa principle should apply to the DDA When considering the DDA itself, HHJ Peter Clark and members in Greenwood said this:
"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 industrial 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 16 August 1997 and to continue off work until the date of the tribunal hearing the tribunal's approach was fatally flawed."
The EAT in that case substituted a judgment that the Claimant was disabled and remitted the issue to the Employment Tribunal as to whether or not there was discrimination which was unlawful.[27]The same issue came up for consideration in Latchman v Reed Business Information Ltd [2002] ICR 1453 where Lindsay J (P) and members said this:- "17. It is always tempting to a court, and is often appropriate, when it is charged with finding out what at some earlier date the future would then have seemed to hold, to have regard to what the future in fact came to pass to be, as, by the date of the hearing, will have sometimes come to be the case. The so-called "Bwllfa principle" deals with such a position; as Lord Macnaghten put it, in relation to an arbitrator:
"Why should he listen to conjecture on a matter which has become an accomplished fact? Why should he guess when he can calculate? With the light before him, why should he shut his eyes and grope in the dark?"
See Bwllfa & Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426 , 431. But both the terms of Schedule I, paragraph 2(1)(b), and the opening words of paragraph B8 of the Guidance emphasise that here what has to be examined is the existence or not of a likelihood. The question is not whether the impairment in fact lasted at least 12 months (as would very often, given inescapable delays in arranging hearings, be capable of being easily seen by looking backwards from the date of the hearing) but whether the "period for which it lasts is likely to be at least 12 months". Although the latter part of the first sentence of paragraph B8 is unhelpful as guidance, it is not, in our view, intended to displace the otherwise proper construction of paragraph 2(1)(b), which the present tense "is likely" assists towards, namely that the likelihood falls to be judged as it currently was, or would have seemed to have been, at the point when the discriminatory behaviour occurred. The latter part of paragraph B8 (taking account of the typical length rather than the actual length of an effect as it has transpired to be) emphasises that it is not what has actually later occurred but what could earlier have been expected to occur which is to be judged. 18. Mr Harris has sought to persuade us that Greenwood v British Airways plc [1999] ICR 969 is to the contrary, in particular at p 977E—F. It is clear that in some respects that paragraph is not to the contrary, but to the extent that it is we must respectfully differ from it."[28]In our judgment the EAT there was softly disagreeing with the previous EAT judgment in Greenwood . It did so on the basis that the Bwllfa principle did not apply to the statutory construct under the DDA for reasons which resided in a textual analysis of the statutory language. With respect, we would hold that this judgment should not be applied in our case. First, it was not necessary for the EAT in Latchman to decide that issue. Whatever recurrence had subsequently transpired was found as a matter of fact to have not been severe enough to give rise to a substantial adverse affect on day to day activities.[29]Secondly, the application of the "important principle" in tort set out in Curwen was not before the EAT in Latchman although of course the Bwllfa principle which was applied in tort in Curwen was. With respect, we cannot see how the statutory Guidance, which enjoins a Tribunal to take account of events before and after the discriminatory act, can be discounted. 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 resisted Bwllfa because of possible manipulation in hearing dates so as to catch otherwise uncaught relapses. But Lord Scott in Golden Strait was alert to this tactic, in para 38 of his speech cited above, and did not see it as a reason for not applying principle.[30]Thirdly, we do not see any particular solution in the use of the present tense "is likely" in the DDA. All speeches in Golden Strait expressly consider what is likely at the time of the breach.[31]Fourthly, there may be a typographical error in this passage from para 17 of Latchman : Although the latter part of the first sentence of paragraph B8 is unhelpful as guidance, it is not, in our view, intended to displace the otherwise proper construction of paragraph 2(1)(b), The sense of this passage is that the word should be "helpful". This is the natural juxtaposition of the two parts of the sentence. It is not easy to see why the EAT felt free, if it did, to find unhelpful guidance required to be taken into account. And it is in our view helpful. It explains the two concepts in paras 2(1)(b) and 2(2) of Schedule 1 of an impairment lasting for, or likely to recur in, 12 months.[32]Fifthly, the EAT downgrades the point to "the so-called Bwllfa principle". In the light of the affirmative approach to this in Golden Strait , we would hold that it is applicable under the DDA, and we would follow Greenwood .[33]We do not consider that to do so would visit a Respondent with retrospective liability. What is being assessed is the mental impairment as at the date of the statutory tort seen in the light of subsequent events. The House of Lords has now conclusively determined that the Bwllfa principle is capable of application in a range of circumstances outside commercial contracts. We are happy to import into the DDA Lord Bingham's "sound approach in law as in life". It directly applies the Guidance, is not inconsistent with the statute and follows one EAT precedent. Employment Tribunals have to take a practical approach to the assessment of disability. It is unattractive and possibly inoperable for them to be expected to ignore the reality of what has occurred so as to found a judgment on what might have occurred.[34]Turning to our particular appeal, we hold that the Tribunal erred in failing to apply the Bwllfa principle to this case. We would also agree that the Tribunal does not explicitly say why it discounted, in its consideration, the relapse in August 2005 and the admission in December 2005 and what weight it placed on those matters. For that reason also the Tribunal erred.[35]It follows that the matter is now in our hands. As in Greenwood and Goodwin , we have sufficient material for us to make the determination without remission to the Employment Tribunal. To this material we would add that the very nature of the diagnosis makes it logical to regard the condition as likely to recur. A condition which is persistent is by definition not finite, sporadic or intermittent. In April 2005 it was a feature of this persistent condition that it was highly likely to recur. We hold that the Claimant's mental condition was a substantial impairment having substantial adverse long-term affect and the issue of discrimination will now be remitted to the Employment Tribunal for it to determine. The Claimant was indeed disabled within the meaning of the statute.[36]We would very much like to thank both advocates for their help in this case. The appeal is allowed.