Patel v Oldham Metropolitan Borough Council

For the purpose of determining whether the effects of an impairment are long term, the duration of effects from a condition which develops from another condition may be aggregated with the duration of the effects of the original condition. This applies even where the conditions are treated as different impairments.

The required causative link between an impairment and its adverse effects must nevertheless be established. Fine distinctions between an original medical condition and a condition developing from it should be avoided. Whether the evidence establishes the necessary connection and duration is a question for the employment tribunal.

The claimant, a teacher, experienced myelitis followed by secondary myofascial pain syndrome. The Employment Judge accepted that both conditions had substantial adverse effects on normal day-to-day activities, but treated them as separate periods and concluded that neither condition had lasted, or was likely to last, at least 12 months.

The claimant appealed, arguing that the duration of the effects could be aggregated under Schedule 1 paragraph 2(1) of the Disability Discrimination Act 1995. The appeal proceeded on the basis that the conditions were different impairments. The central issue was whether the effects of a condition developing from another could be included when determining whether the statutory 12-month requirement was met.

The appeal was allowed and the case was remitted.

1. Section 1(1) and Schedule 1 paragraph 2 of the Disability Discrimination Act 1995 require a causative link between an impairment and its adverse effects. The duration question therefore concerns the effects attributable to the relevant impairment.

2. The duration of the effects of an impairment which is likely to develop, or has developed, from another impairment may be aggregated with the duration of the effects of the original impairment. The statutory language does not require the tribunal to disregard the development of one medical condition from another merely because they are described as different impairments.

3. In applying that approach, tribunals should avoid fine distinctions between an underlying medical condition and its manifestations or development. The question remains whether the evidence establishes that the impairment had effects which had lasted, or were likely to last, at least 12 months.

4. The Employment Judge erred in failing to consider whether the claimant’s secondary myofascial pain syndrome had developed from her myelitis and, if so, whether the effects of the two conditions could be aggregated for Schedule 1 paragraph 2(1)(a).

5. The matter was remitted to the same Employment Judge, or another Employment Judge if that was impracticable, to determine whether the secondary condition had developed from myelitis and whether the resulting effects had lasted at least 12 months.

• Employment Tribunal: judgment entered on 9 March 2009. The claimant was held not to be a disabled person within the meaning of the Disability Discrimination Act 1995, and the disability discrimination complaint was dismissed.
• Employment Appeal Tribunal: appeal allowed. The case was remitted for determination in accordance with the EAT’s judgment.