Fathers v Pets At Home Ltd & Anor (Disability Discrimination : Disability)

Where an impairment’s substantial effects have ceased, a tribunal must address whether they are likely to recur. That is a forward-looking inquiry. In this context, likelihood means that recurrence could well happen, rather than that it is probable.

A tribunal must also assess the effects which an impairment would have had but for treatment, where medication or counselling may be controlling those effects and the evidence raises the point. Failure to determine either issue is a substantive error of law. An appellate tribunal should remit where the omitted issues require factual findings and no single outcome is inevitable.

The claimant, a former assistant manager, brought disability-discrimination claims against her employer. At a pre-hearing review, the Employment Tribunal found that she had depression, stress and anxiety which had substantial effects on normal day-to-day activities, but held that those effects were not long-term.

She appealed against the finding that she was not disabled under Equality Act 2010. She contended that the Tribunal had failed to consider the effects of her condition but for medication and counselling, and whether the effects were likely to recur after April 2012.

The central issue was whether those statutory questions had been addressed and, if not, whether the Appeal Tribunal could determine disability itself or should remit the matter.

1. Appeal allowed. The Employment Tribunal made material errors of law and its conclusion that the claimant was not disabled could not stand.

2. Under Schedule 1 paragraph 2(2) to the Equality Act 2010, an effect which has ceased must be treated as continuing if it is likely to recur. The Tribunal considered only whether there had been a past recurrence. It did not determine the distinct, forward-looking question whether recurrence was likely. Following SCA Packaging Ltd v Boor [2009] IRLR 746, likelihood in this setting means that recurrence could well happen. The threshold is not particularly high.

3. The Tribunal also failed to consider the deduced effects of the impairment. Schedule 1 paragraph 5 required it to ask whether, but for medication and counselling, the impairment would probably have had a substantial adverse effect on normal day-to-day activities. The claimant’s evidence, GP evidence and psychiatric report materially raised that issue. The Tribunal had correctly identified the issue in its legal self-direction, but did not address it in its findings. The point was not a new legal argument on appeal.

4. The two errors were linked. Treatment which reduced the effects of the condition could bear both on the but-for assessment and on the likelihood that substantial effects would recur. The Appeal Tribunal could not resolve those factual questions itself. Neither party could show that only one conclusion was possible.

5. The disability issue was remitted for redetermination at a pre-hearing review before a differently constituted Employment Tribunal. Applying the remission considerations in Sinclair Roche Temperley v Heard [2004] IRLR 763, the short original hearing, the passage of time, the fundamental omissions and the risk of apparent bias outweighed any saving in cost or convenience from returning the case to the same Employment Judge.

• Employment Appeal Tribunal: Appeal allowed and the disability issue remitted to a differently constituted Employment Tribunal.
• Employment Tribunal at Birmingham: Following a pre-hearing review on 11 February 2013, it held that the claimant was not disabled within Equality Act 2010 and dismissed her disability-discrimination claims. Its judgment was sent to the parties on 13 May 2013.