Employment Flash - 20th January 2010

---

Can the effect of two different impairments over two periods amounting together to 12 months or more be considered to constitute a substantial and long term adverse effect within the meaning of the DDA?

Patel v Oldham Metropolitan Borough Council [2010] UKEAT 0225 09 CEA

P experienced pain as a result of 2 medical conditions, the second arose from the first. Neither condition had or was likely to last more than 12 months. Paragraph B6 of the guidance issued pursuant to the DDA takes account of a two impairments situation and whether the two together have a substantial effect overall on a person's ability to carry out normal day to day activities. Ginn v Tesco Stores Ltd UKEAT 0197 05, in a situation where there was more than one impairment the correct approach was to add up the component parts and see whether it amounts to more than the individual parts taken separately. P suggested it was consistent with that approach of aggregation that consecutive impairments, where one arises from another, should be considered together. The EJ concluded that P had not been able to demonstrate a physical impairment which had a substantial long-term adverse effect on her ability to carry out normal day to day activities.

The necessary link under the DDA is the causative link between impairment and effect. One of P's conditions alone had a substantial effect on normal day to day activities; the other condition taken on its own did not. There is no authority on the question of whether the duration of the effects of an impairment which is likely to develop or has developed from a different impairment can be aggregated with the duration of the adverse effects of that impairment. Fine distinctions between one medical condition and its development into another are to be avoided: "It is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment with the stated effects." McNichol v Balfour Beatty Rent Maintenance Ltd [2002] ICR 4198.

The effect of an illness or condition likely to develop or which has developed from another illness or condition forms part of the assessment of whether the effect of the original impairment is likely to last or has lasted at least 12 months. The EJ should have considered whether the secondary condition had developed from the first condition in determining whether the duration of the effects of the two impairments were to be aggregated in order to decide the question of long-term.

For another day: whether two closely related sequential impairments may be regarded as one impairment and its duration calculated accordingly; whether pain is itself an impairment.

NB: in dealing with the medical report in a para 2(1)(b) case (prospective long-term impairment) it will be necessary in most if not all cases that a diagnosis be given in order to obtain a prognosis of the likely duration of the effects of an impairment, which would include an assessment of whether the impairment is likely to lead to the development of another condition which itself could give rise to adverse effects.

Employment Team