Mills v London Borough Of Hillingdon

Under the Disability Discrimination Act 1995, a person remains disabled where an impairment’s substantial and long-term adverse effect has ceased but is likely to recur. The statutory deeming rule preserves disabled status during remission. It does not make evidence about the person’s actual condition during remission irrelevant to every issue. Such evidence may remain relevant to other issues in a discrimination claim, although it cannot contradict the person’s status as disabled. A tribunal retains discretion to control cross-examination, and appellate intervention requires an error of principle in the exercise of that discretion.

The claimant, who suffered from depression, had been found at a preliminary hearing to be a disabled person under section 1(1) of the Disability Discrimination Act 1995, with effects likely to recur. At the substantive hearing, the Employment Tribunal found no unlawful discrimination. The Employment Appeal Tribunal dismissed her appeal.

The renewed application concerned the refusal to permit cross-examination about whether she was actually suffering adverse effects during a period when she said her health was good. The central issue was whether the statutory rule concerning recurrent effects prevented evidence about actual remission or made the claimant’s disabled status conclusive for all purposes.

The Court of Appeal unanimously refused the renewed application for permission to appeal. Lord Justice Mummery gave the judgment, with Lord Justice Pill agreeing.

1. Continuing disability. A person with an impairment that has had a substantial and long-term adverse effect on normal day-to-day activities remains a disabled person where the effect is likely to recur. Schedule 1 paragraph 2(2) treats the ceased effect as continuing for the purpose of disabled status. The finding that recurrence is likely is itself evidential.
2. Evidence during remission. The deeming rule prevents the respondent from arguing that the claimant ceased to be disabled during remission. It does not exclude all evidence about the claimant’s actual condition during that period. Either party may adduce such evidence where it bears on another issue in the discrimination complaint. It cannot, however, be used to dispute the claimant’s status as a disabled person.
3. Control of cross-examination. A period of remission is not outside the scope of evidence. The Employment Tribunal nevertheless had a discretion to determine what questions could properly be put in cross-examination. In the circumstances, including the claimant’s original case that her health was good at the relevant time, the tribunal was entitled to exclude the proposed questioning. An appeal would require an error of principle in the exercise of that discretion, and none was shown.
4. Disposition. The tribunals below had not misinterpreted section 1(1) or Schedule 1 paragraph 2(2). The application had no real prospect of success and was refused.

1. Court of Appeal (Civil Division): an earlier paper application for permission to appeal was refused on 18 December 2001; the renewed application was refused on 15 February 2002: [2002] EWCA Civ 255.
2. Employment Appeal Tribunal: appeal dismissed on 7 November 2001.
3. Employment Tribunal, London North: following the hearing on 3 and 4 April 2000, the tribunal unanimously found that the respondent had not discriminated against the claimant; extended reasons were sent on 12 June 2000.