Sussex Partnership NHS Foundation Trust v Norris (Disability Discrimination)

Factual and Procedural Background

The Respondent, Company A, appealed against a majority decision of an Employment Tribunal ("ET") that the Claimant was a disabled person within the meaning of the Equality Act 2010 ("EqA") section 6(2). The Claimant had been diagnosed with Selective IgA Deficiency ("Selective IgA"), a physical impairment agreed by Company A. The dispute arose from the withdrawal of a job offer by Company A to the Claimant, which the Claimant alleged was due to her disability. The Claimant had previously been employed by Company A until July 2010 and had applied for a new position in October 2010. The ET found that the Claimant was disabled at the material time of October 2010. Company A challenged this finding on two grounds, arguing errors in the ET’s conclusions regarding the substantial adverse effects of the impairment and the likelihood of recurrence of those effects. The Employment Appeal Tribunal ("EAT") heard the appeal and considered the applicable legal provisions and evidence, including expert medical reports and the Claimant’s testimony.

Legal Issues Presented

1. Whether the ET erred in law and reached a perverse conclusion in finding that the deduced effect of the Claimant's impairment, disregarding medical treatment, was substantially adverse to her ability to carry out normal day-to-day activities at the relevant time.
2. Whether the ET erred in law and reached a perverse conclusion in holding that the substantial adverse effect caused by the impairment, which ceased in November 2007, was likely to recur, thereby treating the impairment as continuing to have that effect at the material time.

Arguments of the Parties

Appellant's Arguments

• The majority of the ET incorrectly concluded that the deduced effect of the impairment without medical treatment was substantially adverse to the Claimant’s day-to-day activities, relying too heavily on the opinion of Professor Grimbacher rather than the full evidence.
• The ET failed to properly apply the legal test from Goodwin v The Patent Office and the Equality Act Schedule 1 paragraph 5 by focusing on the effect of infections rather than the increased susceptibility to infection itself.
• The conclusion that increased susceptibility to infections would cause substantial adverse effects was unsupported by evidence and thus perverse.
• The ET erred in concluding that the substantial adverse effects experienced in 2007 were likely to recur, as the evidence did not support this, and Professor Grimbacher did not address the likelihood of recurrence.
• The Claimant’s single episode of substantial adverse effects over many years was insufficient to establish a likelihood of recurrence.
• The Appellant invited the EAT to substitute a finding that the Claimant was not disabled and to strike out the claim.

Respondent's Arguments

• The Claimant contended that without medical intervention she would continue to suffer repeated infections, which cumulatively have a detrimental effect on her ability to function day-to-day.
• The Claimant argued that the three-month period of debilitating ill-health in 2007 demonstrated the potential for substantial adverse effects to recur.
• Evidence, including a medical letter referring to persistent chronic fatigue, supported the Claimant’s position that her impairment continued to have the potential for substantial adverse effects.
• The Claimant maintained that the majority of the ET did not err in concluding that the deduced effect of her impairment was substantial and adverse.
• Regarding the likelihood of recurrence, the Claimant argued the ET applied the correct test of "could well happen" and did not misdirect themselves.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming that the Claimant had a physical impairment, Selective IgA, which causes increased susceptibility to infections but does not directly impair normal day-to-day activities. The ET had found a three-month period in 2007 during which the impairment substantially adversely affected the Claimant’s ability to function, but no substantial adverse effects were demonstrated at the material time in 2010.

Regarding the deduced effect of the impairment absent medical treatment, the majority of the ET relied on Professor Grimbacher’s evidence that the impairment causes increased susceptibility to infections, which during infection episodes severely impair functioning. However, the court found that this evidence did not establish that increased susceptibility itself would necessarily cause a substantial adverse effect on day-to-day activities. The ET majority’s conclusion that infections would result in a substantial adverse effect was not adequately supported by the evidence.

On the issue of recurrence, the court applied the four-step test from Swift and the interpretation of "likely" as "could well happen" from SCA Packaging Ltd v Boyle. The ET majority concluded that the impairment’s substantial adverse effects were likely to recur based on the lifelong nature of the condition and the prior episode in 2007. The court found this conclusion insufficiently supported, noting that Professor Grimbacher did not address the likelihood of recurrence and the Claimant could not recall further episodes of similar severity.

The court acknowledged the absence of full evidence, including the Claimant’s evidence notes and documents before the ET, and thus did not substitute a definitive finding on the issues but allowed the appeal on both grounds.

Holding and Implications

The appeal was ALLOWED on both grounds. The Employment Tribunal’s decision that the Claimant was a disabled person within the meaning of the Equality Act 2010 section 6(2) and Schedule 1 Part 1 was set aside.

The issue of whether the Claimant was disabled at the material time, October 2010, was remitted for re-hearing before a differently constituted Employment Tribunal. No new precedent was established by this decision. The direct effect is that the previous finding of disability is vacated, requiring reconsideration of the Claimant’s status under the Equality Act based on proper application of legal tests and evidence.