In this case, an employee who had suffered a dislocation of her left knee-cap on two occasions but had made a complete recovery between the dislocations, was held to be a disabled person within the meaning of the DDA.
Facts: In July 2002, Mrs Scott suffered a dislocation of her left knee. She had made a full recovery by the start of 2003. In July 2005, Mrs Scott again dislocated her left knee and was absent from work until 30 August 2005. On 7 September 2005, she was dismissed, and later brought a claim for disability discrimination.
The Tribunal identified the preliminary issue as being whether the Claimant was, at her date of dismissal, ‘disabled’. The DDA states that a person is ‘disabled’ if she has a physical or mental impairment which has a substantial and long term affect on her ability to carry out normal day-to-day activities. On the facts, the dislocation of Mrs Smith’s left knee was a physical impairment that had a substantial affect on her ability to carry out normal day-to-day activities. Therefore, did the dislocation have a long term affect?
Under the DDA, an impairment is long term if it has lasted or is likely to last 12 months. However, where an impairment ceases to have a substantial adverse effect, it is to be treated as continuing if it is likely to recur. Given that the impairment had no effects between the period of 2003 to July 2005 (as a full recovery had been made) and that it had not lasted for at least 12 months on either occasion, the Tribunal had to decide whether it should be treated as likely to recur.
The Tribunal held that as the dislocation had already recurred, this was powerful evidence that it was likely to recur again. Accordingly, the Tribunal found that Mrs Smith was disabled. British Gas appealed. The EAT confirmed that the Tribunal was correct in its decision and was entitled to have regard to all evidence up to the date of the hearing in determining whether a person is disabled. The EAT stated that it was open to the Tribunal to form the opinion that it was more likely than not that Mrs Smith would suffer further dislocations with such adverse affect.
This decision shows the EAT and Tribunal’s willingness to expand the scope of the protection of the DDA to employees with recurring injuries. From a practical point of view it highlights the fact that employers need to be made aware and keep records of injuries/illnesses and to have systems in place to spot recurrences so that the risk of an employee being potentially ‘disabled’ can be identified at an early stage.