Woodrup v London Borough of Southwark

For the purposes of paragraph 6 of Schedule 1 to the Disability Discrimination Act 1995, the question is whether, if treatment were stopped at the relevant date, the impairment would have a substantial and long-term adverse effect on normal day-to-day activities. The assessment assumes that treatment has continued until the assumed stopping point and takes account of the benefit already obtained from treatment.

A claimant must prove the deduced effects of the impairment with particularity. In cases of this kind, clear medical evidence will ordinarily be necessary. An Employment Appeal Tribunal may decline to remit where, even on the correct legal approach, the evidence permits only one conclusion and a further hearing could not benefit the claimant.

The appellant claimed disability discrimination against the respondent local authority under the Disability Discrimination Act 1995. The Employment Tribunal decided, as a preliminary issue, that she had not established that her anxiety condition fell within the statutory definition of disability and dismissed the claim.

The Employment Appeal Tribunal dismissed her appeal. It concluded that the Employment Tribunal had considered the deduced effects required by paragraph 6 of Schedule 1 and, alternatively, that the evidence could not establish disability even if the correct question had not been asked. The central issues before the Court of Appeal were whether the evidence was sufficient and whether the Employment Tribunal should have adjourned to enable further medical evidence to be obtained.

1. Appeal dismissed. The Employment Appeal Tribunal was entitled to conclude that the appellant had failed to establish that, without her psychotherapy treatment, her impairment would have had a substantial adverse effect on her ability to carry out normal day-to-day activities.
2. Paragraph 6(1) of Schedule 1 to the Disability Discrimination Act 1995 requires the tribunal to ask whether, if treatment were stopped at the relevant date, the impairment would then have the relevant adverse effect. The assessment assumes that treatment continued until that point, including the benefit obtained from earlier treatment.
3. The appellant’s own evidence about what would happen if treatment stopped was speculative. The medical documents established treatment and progress, but did not establish that stopping treatment would produce the required substantial adverse effect. In a deduced-effects case, the claimant should prove the alleged disability with particularity, and clear medical evidence would ordinarily be expected.
4. The comparison with Kapadia v London Borough of Lambeth was material because that case involved direct medical evidence of a strong likelihood of serious deterioration. The present evidence was materially different.
5. The Employment Appeal Tribunal was also entitled not to remit the matter. On the evidence, only one conclusion was reasonably open, and further proceedings would not have assisted the appellant. The Employment Tribunal had provided a fair opportunity for an unrepresented claimant to explain her case and was not required to adjourn so that further medical evidence might be obtained.
6. The argument based on reasonable adjustments was unsustainable. It was unnecessary to decide conclusively whether an Employment Tribunal was a service provider under section 21(1), because the tribunal had acted fairly and paragraph 6 could not require it to proceed as though the claimant were in fact disabled.

Lord Justice Clarke agreed, adding that the appellant could not know from personal experience what would happen if treatment stopped because treatment had not previously been discontinued. The appeal was dismissed with costs.

1. Court of Appeal (Civil Division): appeal from the Employment Appeal Tribunal dismissed.
2. Employment Appeal Tribunal: appeal from the Employment Tribunal dismissed; it concluded that the correct paragraph 6 question had been considered and that the claim was bound to fail on the evidence.
3. Employment Tribunal: preliminary disability issue determined against the appellant and the disability discrimination claim dismissed.