Grant v. McKechnie Plastic Components

For disability under the Disability Discrimination Act 1995, the question whether an impairment is likely to last at least twelve months requires the statutory meaning of “likely”: more probable than not. Where an employment tribunal has misdirected itself but made complete and unchallenged findings of fact, the appellate tribunal may uphold the decision if it is plainly and unarguably right despite the error. The appellate tribunal should remit the case if the conclusion was wrong or might have been wrong. Procedural complaints will not succeed where the tribunal acted within its case-management powers, the party agreed to proceed, and no material prejudice is shown.

The claimant appealed from a reserved judgment of the Leeds Employment Tribunal, which had dismissed her disability-discrimination claim at a further pre-hearing review. The issue remitted to that tribunal was whether her work-related mental impairment had a long-term adverse effect, including whether it was likely to last at least twelve months.

The tribunal had relied on medical evidence and concluded that the claimant had not established the required long-term effect. The appeal alleged that the tribunal had applied the wrong meaning of “likely”, mishandled witness evidence, and wrongly admitted supplementary psychiatric reports.

1. Appeal dismissed. The Employment Tribunal had applied the wrong meaning of “likely” because it did not have the benefit of SCA Packaging Ltd v Boyle [2009] IRLR 746, which established that the word means more probable than not throughout the Disability Discrimination Act 1995.
2. The error did not require remission. Applying Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812, the question was whether the decision was plainly and unarguably right notwithstanding the misdirection. The Employment Tribunal’s findings were complete, based on the only material medical evidence, and were not challenged as unsupported by evidence. They established that the claimant had failed to prove that the impairment was likely to last for at least twelve months.
3. The complaint concerning witness evidence failed. Although the Employment Judge had misstated the attendance of some witnesses, the claimant agreed to proceed, did not seek an adjournment, and the witness statements did not address the predictive question that had to be decided. No prejudice was shown.
4. The supplementary psychiatric reports were admissible. The Employment Judge was entitled to consider reports from the jointly instructed expert, particularly where the claimant had three days to consider them and made no application for an adjournment or witness summons.

• Employment Appeal Tribunal: dismissed the appeal against the Leeds Employment Tribunal’s reserved judgment dated 21 May 2009 and sent to the parties on 21 July 2009.
• Earlier Employment Appeal Tribunal proceedings: an earlier decision had referred the long-term issue back to the Employment Tribunal. No citation for that decision is stated in the judgment.