C was employed by R as a sales officer. On 20 Dec 2011 she was signed off work with an acute stress reaction, for which she was prescribed medication and a course of counselling. She was certified unfit to work until 16 Mar 2012. C returned to work briefly but by 13 June 2012 she was signed off work with “stress/depression”. C did not return to work and it was common ground that she was disabled by Aug 2012, as confirmed by an occupational health report dated 20 Aug 2012. The issue for the Employment Judge was when C had become a disabled person. C contended that it was as early as July 2010 whereas R stated that the correct date was Aug 2012. At first instance the Employment Judge found that C had a disability from December 2011 when she had first seen her GP. R appealed against this finding.
The Tribunal cited Richmond Adult Community College v McDougall  EWCA Civ 4 which is authority for the proposition that the question of whether the adverse effect of a person’s impairment was “likely to recur” was to be judged on the basis of evidence available at the relevant time (i.e. the time when the C suffered the impairment) without reference to subsequent events. The Employment Judge had reached her decision with reference to C’s “long period off work” and should have carefully restricted herself to the evidence that was available as at the date C suffered the impairment. However the EAT were not prepared to go so far as to find that the Judge’s conclusions that C’s condition was “serious” between March – June 2012 or that C became a disabled person by December 2011 were perverse. The matter was remitted to be heard by a different Employment Judge.
The decision highlights the extreme care which must be taken in deciding non-straightforward cases of disability based on recurring conditions – the Tribunal must restrict themselves to the medical evidence available at the date of occurrence of the impairment. The EAT also sent out a strong message in  about the importance of case managing the disclosure of medical records so orders are focused on the evidence that has to be obtained. In a case of significance and importance, the Tribunal suggested that a joint expert report may be necessary.