MR E M CROAL v NETWORK RAIL INFRASTRUCTURE LTD [2008] UKEAT 0506_07_2802

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0506_07_2802Case No Appeal No. UKEAT/0506/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR E M CROALAPPELLANTNETWORK RAIL INFRASTRUCTURE LTDRESPONDENT
Before
His Honour Judge Peter ClarkDate 28 February 2008
[1]APPEARANCES For the Appellant MR CROAL (The Appellant in Person) For the Respondent MR TOM BROWN (of Counsel) Instructed by: Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TW SUMMARY Disability Discrimination Date at which assessment of likelihood of effect of impairment lasting at least 12 months (DDA. Sch 1, para 2(1)(b); see also para 2(2)). Answer; at date of alleged discriminatory act; not date of ET hearing. See Richmond v MacDougall [2008] EWCA Civ 4 , disapproving Greenwood v BA . HIS HONOUR JUDGE PETER CLARK The parties to these proceedings before the London (Central) Employment Tribunal are Mr Croal, the Claimant, and Network Rail Infrastructure Ltd, the Respondent. I have before me for full hearing an appeal by the Claimant against so much of the reserved judgment of Employment Judge Milton, sitting alone on 19 September 2007, as determined, on the hearing of a preliminary issue, that the Claimant was a disabled person within the meaning of s1 of the Disability Discrimination Act 1995 ("DDA") from 20 March 2006. The Claimant contends that he was disabled from and since 13 July 2005 for the purposes of his claims of unlawful disability discrimination. The Employment Tribunal's reserved judgment was promulgated with reasons on 3 October 2007. The claim[2]The Claimant, born on 28 December 1951, was employed by the Respondent as a stores co-ordinator from 20 October 1995 until his resignation on 27 November 2006.[3]On 30 January 2007 he presented a claim to the Employment Tribunal complaining of breach of contract, constructive unfair dismissal and unlawful disability discrimination. Attached to his form ET1 was a statement of case extending to 86 type-written pages. At the end of that document he summarised his case on disability discrimination at paras 341-345 in this way:
"341. The claimant contends that Network Rail knew in July 2005 that there was a potential long term disability under the Act. 342. The claimant further contends that Network Rail knew in July 2005, that the claimant was not fully recovered from his injury and refused referral to the companies medical officer which amounted to discrimination against the claimant. 343. The claimant contends that Network Rail discriminated against him by denying him office facilities, i.e. desk and locker and to follow Section 6 Of the Disability Act in not amending the claimant's duties and working environment, 344. In removing the office facilities and amending the claimant's duties Network Rail brought about a deterioration in the claimant's disability over the following months. 345. The claimant contends that due to these actions, Network Rail failed to follow the Disability Act which amounts to a Breach of Contract, trust and confidence."
[4]It follows that his complaint of disability discrimination went back to July 2005 and continued up to his resignation, amounting, on his case, to the constructive dismissal in November 2006. The preliminary issue[5]At a Case Management Discussion ("CMD") held before Employment Judge Zuke on 20 April 2007, that Judge directed the parties to obtain a joint medical report relating to the issue of whether the Claimant was a disabled person between 19 May 2005 and 28 November 2006. He further directed that a PHR be held on 19 September 2007 (the hearing before Employment Judge Milton) to decide whether the Claimant was a disabled person "at the material time". Paragraph 4 of his reasons, promulgated with his case management order on 3 May 2007, identified the material time, by agreement between the parties as being 19 May 2006 until termination of the employment on 28 November 2006. In referring to the ordered joint medical report the Judge identified, among the questions to be answered by the medical expert, whether as at 19 May 2005 it was likely that the Claimant's shoulder condition would continue for at least 12 months.[6]Following the CMD the parties prepared an amended list of issues including, under the heading "Disability", "17) ….during what period was C a disabled person, and 19) At what point was any substantial adverse effect on normal day-to-day activities likely to last at least 12 months? (DDA, Sch.

(b) )" Disability

[7]S.1 of the DDA provides:
"1. Meaning of "disability" and "disabled person" (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."
[8]In Goodwin v The Patent Office [1999] IRLR 4 , Morison P enjoined Employment Tribunals to follow closely the scheme of s1 when considering whether or not a Claimant is disabled. That section raises 4 questions(i) impairment(ii) adverse effect(iii) substantiality and(iv) long-term effect.[9]As Mr Brown concedes, in the Respondent's Answer to this appeal, the Respondent takes no issue on the first 3 questions during what Judge Zuke identified as the material time. The case therefore proceeded before Judge Milton on the question of long-term effect only, the first 3 questions being answered in the Claimant's favour. As to the long-term question, the Respondent further conceded that as at 19 April 2006 the Claimant was and remained a disabled person up until his resignation in November 2006. As at 19 April 2006 it was accepted that the Claimant had a physical impairment (affecting his right shoulder) which had a substantial effect on his ability to carryout normal day to day activities and which was then likely to last for a period of at least 12 months (Schedule 1 para 2(1)(b) DDA).[10]There is no cross-appeal against Judge Milton's finding that that state of affairs, disability, was reached at the earlier date of 20 March 2006. Thus the only question for me in this appeal is whether that Judge was wrong in law to find that disability commenced on that date and not the earlier date of 13 July 2005 contended for by the Claimant. Long term effect[11]The principal question of law in this appeal was whether, in answering the question posed by para 2(1)(b) of Schedule 1 DDA; is the long-term effect of the impairment likely to last for at least 12 months? An Employment Tribunal could permissibly look at the position as it appeared (with the benefit of hindsight) at the hearing of the disability issue or whether the assessment was to be made at the date of the discriminatory act(s) alleged?[12]On this question I was referred to conflicting decisions of the EAT, beginning with my judgment in Greenwood v British Airways [1999] ICR 969 and ending with that of HHJ McMullen QC in MacDougall v Richmond Adult Community College [2007] ICR 1567 . Both decisions favour the former approach. However, between those cases were a number, see Cruickshank v VAW Motors Ltd [2002] ICR 729 (HHJ Altman presiding); Latchman v Reed Business Information Ltd [2002] ICR 1453 (Lindsay P); European Wellcare Lifestyles Ltd v Crossingham (UKEAT 0197/06 24 May 2006 HHJ Reid QC); Swift v Chief Constable of Wiltshire Constabulary [2004] IRLR 540 (HHJ Richardson) and Spence v Intype Libra Ltd (UKEAT 0617/07 27 April 2007 Elias P), which favoured the latter approach. Moreover, permission to appeal was sought by the employer in European Wellcare . In refusing permission at an oral hearing Pill LJ, with when Hughes LJ agreed; [2006] EWCA Civ 1415 11 October 2006, preferred the EAT approach in Latchman to that in Greenwood .[13]Having heard oral argument on 9 January 2008 I adjourned to consider the matter and formed the view that the weight of authority favoured the Latchman approach. However, before giving judgment, I discovered that MacDougall had been heard in the Court of Appeal on 27 November 2007 and that judgment was awaited. In these circumstances it seemed sensible to reserve my judgment pending judgment in MacDougall , giving the parties an opportunity to make further written representations on the effect of that decision once it was known.[14]On 17 January 2008 judgment of the Court of Appeal was handed down in McDougall [2008] EWCA Civ 4 . Giving the leading judgment of the court Pill LJ affirmed the view which he had expressed in the permission application in European Wellcare ; the Latchman approach is to be preferred to that in Greenwood . Consequently the EAT decision in McDougall was reversed.[15]I have considered the further submissions of the parties on the effect of the Court of Appeal judgment in MacDougall . Although in that case the court was strictly concerned with the proper construction of para 2(2) of Schedule 1 DDA; whether the effect of an impairment is likely to recur, Pill LJ made clear (para 22) that the word "likely" in both paras 2(1)(b) and 2(2) of the Schedule should bear the same meaning; it involves judging the position on the basis of the evidence as at the date of the discriminatory act of which complaint is made (para 24). That proposition is embraced by Mr Brown and not disputed by Mr Croal, as appears from paras 8-9 of his further submissions. The present case[16]On a date in late April 2005 the Claimant sustained injury to his right shoulder when travelling on a train. He did not seek medical advice until he attended the Crawley hospital walk-in clinic on 19 May that year. He attended his GP the following day and was given a 2 week sick certificate citing shoulder injury. On 27 May he saw Mr Sirkanth, Orthopaedic Registrar, at the East Surrey Hospital, who issued a 4 week certificate, stating "Right A/C joint". Type 1 injury. On 15 June his GP gave him a further 4 week certificate, referring to the right a/c joint subluxation (i.e. dislocation). On 8 July the Claimant saw Mr Lal, Locum Orthopaedic Consultant, who wrote to his GP stating that his shoulder was settling down with physiotherapy and he had regained reasonable movement although abduction beyond 90° was uncomfortable and limited. Radiographs showed a/c joint degeneration. He was advised to continue with physiotherapy.[17]The Claimant returned to work on 13 July 2004 and continued at work until 28 December 2005, when his GP certified him off work for 4 weeks due to shoulder pain. A further 4 week certificate in similar terms was issued on 24 January 2006.[18]On 6 February 2006 the Claimant again saw Mr Lal and on 14 March he saw Mr Selvan, a consultant orthopaedic surgeon with an interest in shoulder surgery. On 20 March Mr Selvan wrote to Mr Lal that the Claimant had extreme pain and tenderness overt he account joint with a painful arc. He recommended surgery.[19]On 10 June 2006 Mr Selvan operated on the Claimant's shoulder. He found a type 3 acromion and osteoarthritis of the account joint. The Claimant never returned to work after 28 December 2005 before his resignation in November 2006. The Employment Tribunal decision[20]Judge Milton appeared to direct himself in accordance with Greewood (para 11 reasons), but at paras 16-25 considered the position as at 13 July 2005 (see now McDougall ), based on the medical evidence, including that of Mr Cohen, the joint expert.[21]At para 24-25 he said:
"24. I accept that looking back over the whole period there might be a possibility that some Doctors might have been more pessimistic and have perhaps been more guarded in their conclusions. The overall picture however is that Mr Lal, Mr Srinkanth and Dr Armstrong, the Claimant's GP between them appeared to be satisfied that this was a type 1 injury and there was a reasonable prospect of recover within a matter of weeks. The Claimant himself – unhappily – certainly noted some improvement and appears to have gone along with the idea of recovery and a return to work. 25. In my judgment the verdict of anyone concerned with the Claimant at that time when he returned to work in July would have been that "it was likely" that there would be a reasonable recovery within a matter of a few weeks. In those circumstances I have come to the conclusion that it is impossible for the Claimant to satisfy a Tribunal that at that time "it was likely that the condition would last for at least 12 months"."
[22]He went on to find that the initial optimism of the doctors was not bone out in the event and found that as at 20 March 2006 (the date of Mr Selvan's letter to Mr Lal) the pendulum had swung in favour of it being likely that the Claimant's condition would last for more than 12 months. (paras 26-29). The appeal[23]In light of the Court of Appeal decision in MacDougall that the Latchman approach is to be preferred to that in Greenwood , I find no error in that adopted by the Chairman. He reached a permissible conclusion as to the point in time at which, on the material then available, it was likely that the Claimant's condition would last for at least 12 months. The fact that the subsequent discovery, at operation on 10 June 2006, that the Claimant's condition, taking into account pre-existing degenerative charges, was a type 3 injury and not the lesser Type 1 injury as Mr Sirkanth had originally opined on 27 May 2005 is not a factor which it was appropriate for the Employment Tribunal to consider, applying the approach in MacDougall .[24]That disposes of the principal question of law raised by Mr Croal in the appeal. However, for completeness I should deal with the 3 further complaints raised in the appeal.[25]First, I accept Mr Brown's submission that it was unnecessary for the Employment Tribunal to make findings of fact, for the purposes of this preliminary issue as to disability on the Claimant's limitations or improvements (Reasons para 30). Those matters were not in dispute.[26]Secondly, as to Mr Croal's challenge to the Employment Tribunal's findings of fact at paras 12-15 of the reasons, it is common ground between the parties that those findings were irrelevant to the issue of disability then before the Tribunal. Accordingly(a) they are irrelevant to this appeal and(b) not binding on any future Employment Tribunal under the principles of issue estoppel.[27]Finally, I agree with Mr Brown that far from departing from the opinion of the joint expert, Mr Cohen, the Chairman appears to have accepted his opinion, particularly as to the likely duration of the Claimant's condition on the basis of a Type 1 injury as it was originally categorised. Conclusion[28]In these circumstances the appeal fails and is dismissed.