British Gas v Scott
The Disability Discrimination Act 1995 (DDA) protects people even if their impairment ceases to have a substantial adverse effect on them, as long as that effect recurs. In British Gas v Scott, the Employment Appeal Tribunal (EAT) said that it is up to tribunals to decide how likely it is that the effects will recur.
Mrs Scott’s union, UNISON, instructed Thompsons to act on her behalf.
Basic facts
Mrs Scott worked as a customer services advisor for British Gas. In July 2002 she dislocated her left knee when she knocked it against a piece of furniture at home. She did the same again on 30 July 2005 when she fell in the street with the result that she was off for the whole of August.
Unfortunately, Mrs Scott had been warned at a hearing in June about her attendance levels (nothing to do with the first sickness absence) and had been set a target of one day off in the following six months. As she failed to meet that target, she was dismissed on 7 September.
Mrs Scott lodged a claim for unfair dismissal and disability discrimination.
Relevant law
Section 1(1) of the DDA states that to be protected under the Act, claimants must have “a physical or mental impairment which has a substantial and long-term adverse effect on his [or her] ability to carry out normal day-to-day activities”.
Paragraph 5 of schedule 2 states that the effect of an impairment is long term if it lasts 12 months. It also states that even if “an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect recurs.”
Tribunal decision
The tribunal was in no doubt that Mrs Scott had suffered an impairment in 2002 which had a substantial adverse effect on her ability to carry out normal day-to-day activities. She had, however, made a complete recovery by the end of 2003, at which point “any impairment had ceased”.
The tribunal then decided that, although she had made a complete recovery by the beginning of 2003, she still “fell within that category of people for whom there was an increased risk of a dislocation”. As the risk did recur, she had “established that she was suffering from a present disability as at the date of her dismissal.”
However, just in case it was wrong on that score, the tribunal said that she could also be said to be suffering from a past disability “in that the effect had in fact recurred” and there was a continuing impairment.
EAT decision
And the EAT agreed with the tribunal. It said that the impairment from which Mrs Scott was suffering was “her increased risk of dislocating her patella.” Although she had made a complete recovery of her impairment by 2003, that did not mean it had ceased to exist.
But did it have “a substantial adverse effect”? The relevant date for deciding whether or not Mrs Scott was disabled was the date of discrimination – in other words September 2005. By this date she had suffered two dislocations which had a substantial effect on her ability to carry out normal day-to-day activities. The EAT concluded that “it was open to the Tribunal on this basis to form the view that it was more likely than not that she would suffer further dislocations with such effects”.
The EAT also said the tribunal was entitled to find she had a past disability. “So long as there was still a continuing adverse effect at the date of the dismissal, she was to be treated as disabled for the purposes of the Act. If there were no continuing substantial adverse effects at that date, the question would again have been whether there was a probability of the recurrence of a substantial adverse effect. The Tribunal found there was such a probability.”