Sussex Partnership NHS Foundation Trust v Norris

An impairment may affect normal day-to-day activities through an intermediate causal step. A direct causal link is not required. However, under Equality Act 2010 Schedule 1, paragraph 5, evidence that an impairment increases susceptibility to infection does not, without more, establish that the increased infections would have a substantial adverse effect on normal day-to-day activities.

For recurrence under Schedule 1, paragraph 2(2), the tribunal must identify the particular substantial adverse effect which previously ceased and decide, on adequate evidence, whether that effect could well happen again. A lifelong impairment and one historical episode of substantial adverse effect are not alone sufficient.

The claimant alleged that the Trust withdrew a conditional job offer because a referee referred to her disability. She had Selective IgA Deficiency, a physical impairment which increased susceptibility to infection.

By a majority, the Employment Tribunal held that she was disabled at the material time in October 2010. It treated her impairment as having a substantial adverse effect if medication were disregarded, and held that substantial effects experienced in 2007 were likely to recur. The Employment Judge dissented on both issues.

The Trust appealed on the grounds that those conclusions lacked evidential support. The central issues were the deduced effect of treatment under Schedule 1, paragraph 5, and whether the former substantial adverse effects were likely to recur under paragraph 2(2).

1. Appeal allowed. The Tribunal’s decision that the claimant was a disabled person was set aside. The issue was remitted to a differently constituted Employment Tribunal.

2. Section 6(1)(b) of the Equality Act 2010 requires a causal link between the impairment and a substantial, long-term adverse effect on normal day-to-day activities. That link may be indirect. An intermediate stage, such as susceptibility to infection, does not prevent the impairment from being causative.

3. The majority ET nevertheless erred under Schedule 1, paragraph 5. The evidence established increased susceptibility to recurrent infections if medication were disregarded. It did not adequately establish that the resulting increased frequency of infections would itself substantially adversely affect the claimant’s ability to undertake normal day-to-day activities. The expert evidence addressed work during infection, but did not support the wider conclusion concerning shopping, housekeeping and walking.

4. On recurrence, the ET had to consider the specific substantial adverse effects which ceased in November 2007, rather than merely the prospect of future infections. Applying the approach in Swift and the meaning of “likely” in SCA Packaging Ltd v Boyle and Equality and Human Rights Commission, the question was whether those effects could well happen again.

5. The claimant’s lifelong condition and one period of substantial adverse effects did not sufficiently support that conclusion. The expert had not addressed recurrence of those effects, and there was no evidence of comparable effects before or after the 2007 episode. The EAT did not substitute a finding that the claimant was not disabled because the available record did not make that conclusion inevitable.

• Employment Appeal Tribunal: appeal allowed; the Employment Tribunal’s finding that the claimant was disabled was set aside and remitted for rehearing.
• Employment Tribunal: by majority, held that the claimant was disabled under section 6(2) and Schedule 1 Part 1 of the Equality Act 2010.