Anwar v. Tower Hamlets College

Factual and Procedural Background

On 20 May 2009, Employment Judge Glennie at the Employment Tribunal at Stratford conducted a pre-hearing review and decided that the Claimant was not disabled within the meaning of the Disability Discrimination Act 1995 at the relevant time. Consequently, the Claimant's claims under the Act were dismissed. The Claimant appealed this decision.

The relevant time period identified was from November 2006 to June 2007, starting with symptoms of a frozen shoulder and including recurrent headaches commencing in January 2007. The alleged discrimination occurred in June 2007.

The Employment Judge considered evidence including the Claimant’s testimony and an impartial medical report from a consultant neurologist, Dr Harvey, dated September and October 2008. The Judge made factual findings on the nature, severity, frequency, and duration of the headaches and the frozen shoulder condition.

Legal Issues Presented

1. Whether the Claimant was disabled within the meaning of the Disability Discrimination Act 1995 during the period from November 2006 to June 2007.
2. Whether the impairments (headaches and frozen shoulder) had a substantial adverse effect on the Claimant’s ability to carry out normal day-to-day activities.
3. Whether the impairments were long-term effects as defined by the Act, specifically if they lasted or were likely to last at least 12 months.
4. The proper interpretation of the term "likely" in the context of long-term effects under the Act, especially in light of subsequent case law.
5. Whether medical treatment that might have cured the impairment during the relevant period should be considered when assessing the duration and substantiality of the disability.

Arguments of the Parties

Appellant's Arguments

• The Employment Judge erred in law by misconstruing the statutory guidance on "substantial adverse effect," particularly paragraph B1, by treating an effect as more than trivial but still minor and not substantial.
• The Judge failed to properly articulate the basis for concluding the headaches did not have a substantial adverse effect, despite findings that headaches occurred on average once daily.
• The Judge’s conclusion that the impairment did not have a substantial adverse effect was perverse given the evidence.
• The Judge applied the wrong legal test for "likely" in assessing whether the impairment was long-term, relying on guidance that defined "likely" as "more probable than not," contrary to later House of Lords authority indicating a less stringent test.
• The Judge erred in law by considering the possibility of future medical treatment curing the impairment when assessing if the condition was likely to last 12 months, as the statute does not expressly permit such consideration absent regulations which have not been made.

Respondent's Arguments

• The terms "minor" and "trivial" are distinct in the guidance, and there is no legal error in the Judge describing the headaches as more than trivial but still minor and not substantial.
• The Judge’s conclusion on the substantial adverse effect was a permissible factual finding and not perverse.
• In assessing whether the impairment was likely to last 12 months, it is appropriate to consider all relevant factors, including medical treatment that may reasonably be available, as part of the speculative exercise required by the statute.
• Ignoring the potential for treatment would lead to absurd results, such as treating a dislocated shoulder as a long-term disability despite a high likelihood of prompt cure.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the statutory framework of the Disability Discrimination Act 1995, including section 1 and Schedule 1 provisions defining "disability," "substantial adverse effect," and "long-term effect." The court reviewed the Secretary of State’s guidance, noting it is not law but must be considered by tribunals.

On the issue of substantial adverse effect regarding headaches, the court upheld the Employment Judge’s factual findings and reasoning. The Judge found the headaches caused more than trivial effects but were minor and not substantial within the meaning of the Act. The court rejected the Appellant’s argument that this was an error of law or a perverse conclusion, emphasizing the distinction between "trivial," "minor," and "substantial" effects as consistent with the guidance.

Regarding the "long-term" nature of the impairments, the court found the Employment Judge applied the statutory guidance’s definition of "likely" as "more probable than not." However, subsequent House of Lords authority established a less stringent interpretation ("may well be"). This constituted an error of law warranting success on appeal in relation to the frozen shoulder impairment.

The court also analyzed the Employment Judge’s consideration of the potential for medical treatment curing the frozen shoulder within the 12-month period. It concluded that while the statute does not expressly provide for discounting disabilities due to possible future treatment absent regulations, the speculative exercise mandated by the statute requires consideration of all relevant factors, including treatment availability and effects. The Employment Judge gave excessive weight to the medical report without sufficient analysis of these factors, which the court indicated should be addressed on remittance.

Accordingly, the court dismissed the appeal concerning the headaches but allowed the appeal concerning the frozen shoulder, remitting that issue for rehearing by a different Employment Judge applying the correct legal test and conducting a fresh evaluation.

Holding and Implications

The court’s final decision was to DISMISS the appeal in respect of the headache impairment and to ALLOW the appeal in respect of the frozen shoulder impairment.

The frozen shoulder issue is remitted to a different Employment Judge for reconsideration applying the correct legal test for "likely" and taking into account a more nuanced analysis of the impact of medical treatment on the duration of the impairment.

This decision directly affects the parties by requiring a fresh hearing on the frozen shoulder issue but does not establish new binding precedent beyond clarifying the application of existing case law and statutory interpretation principles.