Wigginton v Cowie & Ors (t/a Baxter International (A Partnership))

When determining disability under section 1 of the Disability Discrimination Act 1995, an Employment Tribunal must address four sequential questions: impairment; effect on normal day-to-day activities; substantial adverse effect; and long-term effect.

In assessing whether an impairment is likely to last at least 12 months, the tribunal must assess the evidence available at the relevant date. Likely means that the event could well happen, rather than that it is more probable than not. An appeal will be allowed where the tribunal intermingles the statutory questions, fails to make necessary findings, or applies the disapproved approach.

The Claimant appealed against a reserved judgment of the Southampton Employment Tribunal, following a pre-hearing review, which held that he was not disabled within section 1 of the Disability Discrimination Act 1995.

The Claimant had sustained soft-tissue injuries in a road traffic accident during his employment. The Employment Tribunal considered whether the effects, including possible psychological symptoms, satisfied the statutory definition as at the date his employment ended. The appeal challenged both the fairness of the hearing and the tribunal’s approach to disability.

The central issues were whether the Employment Tribunal had correctly applied the statutory sequence and the applicable test of likelihood.

1. The appeal was allowed on the substantive disability issue. The Employment Tribunal had not correctly applied the law to the facts.

2. The statutory disability question requires four sequential inquiries, identified in Goodwin v The Patent Office [1994] IRLR 4: whether there is a mental or physical impairment; whether it affects normal day-to-day activities in a relevant respect; whether the adverse effect is substantial, meaning more than minor or trivial; and whether it is long-term.

3. The Employment Tribunal had intermingled those questions. It used disability as if it were synonymous with impairment, made no firm finding as to the existence of physical or mental impairment, and failed clearly to decide whether accepted effects were substantial.

4. On the long-term issue, the relevant assessment must be made by reference to the evidence available at the material date, namely the date employment ended. The Employment Tribunal had correctly applied the approach in Richmond Adult Community College v McDougall [2008] IRLR 227.

5. The Employment Tribunal had applied the approach in Latchman v Reed Business Information Ltd [2002] ICR 1453, that likely meant more probable than not. That approach had been disapproved by the House of Lords in SCA Packaging Ltd v Boyle [2009] IRLR 746, which held that likely means that the event could well happen. The long-term conclusion therefore could not stand.

6. The fairness ground failed. The Claimant had received a fair hearing. The disability issue was remitted to a fresh Employment Tribunal to avoid any subconscious tendency towards the original conclusion or any perception of predetermination.

• Employment Appeal Tribunal: allowed the appeal on the substantive disability issue and remitted the question whether the Claimant was disabled under the Disability Discrimination Act 1995 to a fresh Employment Tribunal. The fairness ground was rejected.
• Southampton Employment Tribunal: following a pre-hearing review, held that the Claimant was not disabled under section 1 of the Disability Discrimination Act 1995.