Patel v Oldham Metropolitan Borough Council & Anor

Factual and Procedural Background

This is an appeal from a judgment of an Employment Judge ('EJ') dated 9 March 2009, concerning whether the Appellant qualifies as a disabled person under the Disability Discrimination Act 1995 ('DDA'). The core issue is whether the effects of two different impairments occurring over separate periods, which together total 12 months or more, can be aggregated to meet the DDA’s threshold for a substantial and long-term adverse effect. The Appellant, a teacher employed by the Respondent, suffered from two consecutive impairments: low grade myelitis from February 2005 to December 2005, and a secondary myofascial pain syndrome starting January 2006. The Appellant experienced significant absences due to these conditions and was ultimately dismissed for capability reasons in April 2007. The Employment Judge concluded that the impairments could not be combined for the purpose of establishing disability under the DDA and dismissed the claim for disability discrimination. The appeal challenges this legal conclusion.

Legal Issues Presented

1. Whether the effects of two different impairments experienced over two periods, which together last 12 months or more, can be combined to satisfy the requirement of a substantial and long-term adverse effect under Schedule 1 paragraph 2(1) of the Disability Discrimination Act 1995.
2. Whether the Employment Tribunal erred in law by not considering the combined effects of the Appellant’s two medical conditions—low grade myelitis and secondary myofascial pain syndrome—as constituting the same impairment for the purpose of establishing long-term disability under the DDA.

Arguments of the Parties

Appellant's Arguments

• The terms "disability" and "impairment" under the DDA should be construed purposively to reflect the statute’s protective intent.
• There is established authority supporting the aggregation of multiple impairments to determine whether their combined effect is substantial, as demonstrated in Ministry of Defence v Hay and Mrs Ginn v Tesco Stores Ltd.
• It would be inconsistent to aggregate concurrent impairments for assessing substantial effect but not aggregate consecutive impairments to determine the duration of the impairment’s adverse effects.
• Where one impairment arises from another, both should be considered together for duration assessment; determining whether impairments are related is a question of fact.
• Although pain was not contended as an impairment in this case, the Appellant argued that the effects of related consecutive impairments should be aggregated to meet the 12-month duration requirement.
• Authority from McNicol v Balfour Beatty Rent Maintenance Ltd and College of Ripon & York St John v Hobbs supports a flexible approach that tolerates blurring distinctions between underlying conditions and their manifestations.

Respondent's Arguments

• The cause of impairments is irrelevant to the question of whether their durations can be aggregated; the impairments themselves are the medical conditions.
• While the singular "impairment" in the DDA can be interpreted as plural, there is no statutory, guidance, or case law support for aggregating the durations of related impairments consecutively to satisfy the long-term requirement.
• The Employment Appeal Tribunal’s approach in Mrs Ginn v Tesco Stores Ltd demonstrates that relatedness of impairments does not affect whether their durations can be aggregated.

Table of Precedents Cited

Court's Reasoning and Analysis

The court framed the appeal issue narrowly: whether two different consecutive impairments can be aggregated in duration to satisfy the 12-month long-term effect criterion under Schedule 1 paragraph 2(1)(a) of the DDA. It acknowledged established authority permitting aggregation of multiple impairments to assess substantial adverse effect but distinguished this from the question of aggregating durations of separate impairments.

The court emphasized that the statutory test requires a causative link between an impairment and its adverse effects. It accepted that the secondary myofascial pain syndrome developed from the initial myelitis, which could justify treating them as one impairment for duration purposes. The court found that the Employment Judge erred by failing to consider whether the secondary impairment had developed from the first and thus whether their combined duration met the statutory threshold.

Drawing on precedent, the court endorsed a pragmatic, fact-sensitive approach rather than rigid distinctions between separate medical conditions and their manifestations. The court ruled that the effect of an illness likely to develop or that has developed from another illness should be included in assessing whether the impairment's duration meets the long-term requirement.

Consequently, the appeal was allowed, and the case was remitted for further factual findings on whether the secondary impairment developed from the primary and whether the combined duration satisfies the DDA’s long-term disability criterion.

Holding and Implications

The court’s final decision is that the Employment Judge erred in law by not considering whether the secondary myofascial pain syndrome developed from the initial myelitis and whether their combined duration met the statutory requirement for long-term disability under the DDA.

The appeal is allowed and the matter is remitted to the Employment Tribunal for a determination, based on relevant evidence, of whether the effects of the impairments should be aggregated for duration and whether the Appellant qualifies as disabled under the DDA.

This decision directly affects the parties by requiring further factual inquiry but does not establish a new precedent beyond clarifying the approach to related consecutive impairments in the context of the DDA’s long-term effect test.