Singapore Airlines Ltd v Casado‑Guijarro

Whether an impairment has a long-term effect must be determined by reference to the evidence available at the relevant date. Later events cannot establish that, at that earlier date, the effect was likely to recur or likely to last at least 12 months.

The statutory assessment of disability under the Equality Act 2010 remains fact-specific. Where the Employment Tribunal has applied the wrong temporal approach, the Employment Appeal Tribunal should remit the issue unless no permissible conclusion other than the opposite conclusion was available.

The claimant, an employee of Singapore Airlines, was absent from work with an acute stress reaction from December 2011, returned on a phased basis in March 2012, and was absent again from June 2012. It was common ground that she was disabled by August 2012.

An Employment Judge held that she had been disabled from December 2011. The employer appealed, contending that the Judge had impermissibly relied on subsequent events when assessing whether the condition was long-term, and that the conclusion was perverse.

The central issue was whether the claimant was a disabled person in December 2011 under the Equality Act 2010.

1. Appeal allowed. The Employment Judge’s finding that the claimant was disabled from December 2011 was set aside and the issue was remitted to a different Employment Judge for reconsideration.

2. The Court of Appeal’s reasoning in Richmond Adult Community College v McDougall, [2008] ICR 431, applied not only to recurrence under paragraph 2(2) of Schedule 1 but also to the word “likely” in paragraph 2(1). The question must be answered solely by reference to evidence available at the relevant time. Later events may show what happened, but cannot prove that the event was likely when the earlier assessment had to be made.

3. The Employment Judge had relied on the claimant’s later lengthy absence and subsequent recurrence of symptoms when deciding her position in December 2011. That was an error of law. Her decision therefore could not stand.

4. The finding that the claimant’s condition was serious between March and June 2012 was not perverse. Nor was it perverse to conclude that she might have become disabled in December 2011. The evidence of a serious episode, medication, counselling and the asserted earlier onset could permit such a conclusion if the statutory criteria were correctly applied. The assessment was fact-specific and the Appeal Tribunal could not substitute its own view.

5. The new hearing should begin afresh before a different Employment Judge. In significant disability cases, case management should ensure that medical evidence is directed to the statutory question, particularly where a claimant is unrepresented.

• Employment Appeal Tribunal: allowed the employer’s appeal and remitted the question of disability from December 2011 for a fresh determination.
• Employment Tribunal: Employment Judge Davidson, by a judgment dated 2 July 2013, held that the claimant had been disabled from December 2011.