Anwar v. Tower Hamlets College

For the purposes of determining whether an impairment is likely to last at least 12 months, “likely” means that it may well, or could well, happen. It does not mean more probable than not. The Secretary of State’s guidance under the Disability Discrimination Act 1995 was therefore wrong on that point.

Potentially effective medical treatment is relevant to the assessment of likely duration, but it is only one factor. The tribunal must consider all relevant circumstances and must not treat medical evidence about treatment as determinative. A finding that an effect is more than trivial does not necessarily establish a substantial adverse effect.

Ms Anwar appealed against a pre-hearing review decision of Employment Judge Glennie, who held that she was not disabled within the meaning of the Disability Discrimination Act 1995. The alleged impairments were recurrent headaches and a frozen shoulder affecting the left shoulder and arm. The relevant period was November 2006 to June 2007.

The Employment Judge found that the headaches did not have a substantial adverse effect and that the frozen shoulder was not likely to last for at least 12 months, partly because it was amenable to treatment. The appeal concerned the construction of “substantial adverse effect”, the meaning of “likely”, and the relevance of available medical treatment.

1. Headaches. The appeal was dismissed on the headache issue. The Employment Judge was entitled to find that the headaches, although more than trivial, had only a minor effect and did not produce a substantial adverse effect. The statutory guidance was not legislation and did not require an effect which was more than trivial to be treated as substantial. The reasons sufficiently addressed the frequency and effect of the headaches, and the conclusion was not perverse.
2. Meaning of “likely”. In assessing whether an impairment is likely to last for at least 12 months under Schedule 1 paragraph 2 of the Disability Discrimination Act 1995, the correct test is whether it may well, or could well, last for that period. The Employment Judge applied the more demanding balance-of-probabilities test stated in paragraph C2 of the guidance. Following SCA Packaging Limited v Boyle [2009] UKHL 37, that was an error of law.
3. Medical treatment. The statutory exercise requires informed speculation about the likely duration of the impairment. Relevant matters include the length of the unexpired part of the 12-month period, treatment already received, whether it would be reasonable for the claimant to seek treatment, the general availability of treatment, and its likely effect within the period. Treatment must not be treated as determinative merely because medical evidence suggests that the condition is amenable to it.
4. The frozen shoulder issue was remitted to a different Employment Judge for a fresh determination, with the evidence reheard and the correct legal test applied. The appeal was dismissed in respect of the headaches.

1. Employment Tribunal: On 20 May 2009 Employment Judge Glennie held at a pre-hearing review that Ms Anwar was not a disabled person within the meaning of the Disability Discrimination Act 1995.
2. Employment Appeal Tribunal: The appeal was dismissed on the headache issue and allowed on the frozen shoulder issue. The latter issue was remitted to a different Employment Judge.