Latchman v Reed Business Information Ltd

In assessing disability, a tribunal may consider the duration of an impairment together with its adverse effect on normal day-to-day activities. An artificial distinction between an impairment and its effects is unnecessary. A tribunal is entitled to choose between conflicting medical evidence and determine the weight to give each part of the evidence. An appellate challenge cannot generally rely on a point that was not advanced below. For recurrence, likelihood means more probable than not. Permission to appeal should be refused where the proposed grounds have no real prospect of success and no other compelling reason supports the appeal.

The Employment Tribunal held by a majority that the applicant was not a disabled person for the purposes of the Disability Discrimination Act 1995 and dismissed her disability discrimination claim against her employer. The Tribunal accepted that severe depression had substantially affected normal day-to-day activities, but found that the effect had not lasted 12 months and that recurrence was not more probable than not. The Employment Appeal Tribunal affirmed that decision. On a renewed application, the Court of Appeal considered whether the proposed grounds disclosed errors of law concerning impairment, medical evidence, unargued issues and the statutory likelihood requirement.

Application refused. Lord Justice Peter Gibson rejected each proposed ground and Lord Justice Jonathan Parker agreed.

1. The alleged distinction between an impairment and the effect of an impairment was artificial. The Employment Tribunal made no error of law by considering the duration of the severe depressive episode and bulimia together with their effects on the applicant’s ability to carry out normal activities.
2. The Employment Tribunal was entitled, as the fact-finding tribunal, to decide what weight to give the evidence. It could prefer the evidence of Dr Rowan to the matters recorded by Dr Sennik, particularly since Dr Sennik’s assessment followed a brief interview for a different purpose and was not tested in cross-examination. That conclusion did not disclose an error of law.
3. A tribunal’s decision cannot be impugned for failing to consider a matter that was not actually put, or cannot be shown to have been put, to it. This applied both to the suggested significance of the milder depression and to the argument under paragraph 2(1)(b) of Schedule 1 to the Disability Discrimination Act 1995.
4. The Employment Tribunal had applied the correct approach to recurrence under paragraph 2(2) of Schedule 1. A possibility of recurrence assessed at about 50 per cent did not establish that recurrence was more probable than not.
5. None of the remaining grounds had a real prospect of success, and no other compelling reason had been shown for allowing the appeal to proceed. The renewed application for permission to appeal was therefore refused.

• Court of Appeal (Civil Division): On a renewed application for permission to appeal, refused the application.
• Employment Appeal Tribunal: Affirmed the Employment Tribunal’s decision.
• Employment Tribunal: By a majority, held that the applicant was not disabled for the purposes of the Disability Discrimination Act 1995 and dismissed the discrimination claim.