THE HONOURABLE MR JUSTICE KEITH
Introduction
1.
The claimant, Ms Rachida Sobhi, is a police community support officer
with the Metropolitan Police. In August 2008, she applied to become a police
constable. As part of that process, her fingerprints were taken. That
revealed that she had been convicted in 1991 of an offence of theft from a
previous employer for which she had been conditionally discharged. Her
application to become a police constable was refused, and in April 2009, she
received a disciplinary reprimand (which was to remain on her file for five
years) for failing to disclose her previous conviction when she had originally
applied to become a police community support officer and when she had
subsequently applied to become a police constable.
2.
In November 2009, Ms Sobhi applied once again to become a police
constable, this time disclosing her previous conviction. That application was
refused in December 2009 on the basis that the reprimand on her file prevented
her from being considered for appointment as a police constable. It is said
that her previous conviction would have prevented her from being considered for
such an appointment anyway.
3.
In November 2010, Ms Sobhi brought a claim in the employment tribunal
complaining of discrimination on the ground of her sex, her sexual orientation,
her religion or beliefs, her age and her disability against the Metropolitan
Police and a number of individuals. Leaving aside the individuals, the
Commissioner of Police of the Metropolis was treated as the appropriate respondent
in respect of the claim against the Metropolitan Police. The current appeal
relates only to her claim of discrimination on the ground of her disability.
At a case management discussion at the employment tribunal in London Central on
21 January 2011, the acts which were said to have amounted to her
discrimination on the ground of her disability, leaving aside an issue of
victimisation, were identified as the reprimand she had got in April 2009 and
the refusal of her second application to become a police constable in December
2009. The first of those allegations was that the Metropolitan Police had
failed to make reasonable adjustments, which is shorthand for an allegation that
in reprimanding her the Metropolitan Police had applied a provision, criterion
or practice to her, which had placed her at a substantial disadvantage in
comparison with people who were not disabled, and had failed to take reasonable
steps to prevent that provision, criterion or practice from having that
effect. The second of the allegations was one of direct discrimination on the
ground of her disability, i.e. that in refusing her second application to
become a police constable, she had been treated less favourably because of her
disability than a non-disabled person would have been. Her case is that when
she had originally applied to become a police constable, she had forgotten
about her conviction and the facts to which it related as a result of traumatic
events in her life.
4.
At the case management discussion, it was ordered that there should be a
pre-hearing review to decide a number of things, one of which was whether Ms
Sobhi had been a disabled person at the relevant time. The pre-hearing review
took place before Employment Judge Sigsworth on 12 May 2011. He concluded that
Ms Sobhi had not been a disabled person at the relevant time, and her claim of
discrimination on the ground of her disability was dismissed. Following the
dismissal of that claim, Ms Sobhi withdrew her other claims, but she now
appeals to the Employment Appeal Tribunal against the finding that she had not been
a disabled person at the relevant time and against the dismissal of her claim
of discrimination on the ground of her disability.
5.
The employment judge thought that the relevant time at which Ms Sobhi
was or was not a disabled person was when the acts which were said to have
amounted to her discrimination took place, namely in April and December 2009.
Mr Rohan Pirani for the Commissioner suggests otherwise. He says that the
relevant time was February 2009 when Ms Sobhi completed the security
questionnaire in which she had had to disclose whether she had any previous
convictions because that was when such disability as she had would have
disadvantaged her. That is not a debate into which I need to be drawn because
it is not suggested that it makes any difference to the one ground of appeal which
I have decided is determinative of the appeal.
The meaning of “disabled person”
6.
The statutory provisions on the topic are well known. The starting
point, of course, is the definition of “disabled person” in section 1(1) of the
Disability Discrimination Act 1995 (“the 1995 Act”):
“Subject to the provisions of Schedule 1, a person has a
disability for the purposes of this Act if he had a physical or mental
impairment which has a substantial and long-term adverse effect on his ability
to carry out normal day-to-day activities.”
The impairment which Ms Sobhi was
conceded to have had was a mental one. It was dissociative amnesia, which is a
form of mental illness which involves the breakdown of, or disruptions in,
someone’s memory. The Commissioner conceded that at the time she had completed
the security questionnaire in February 2009 she had been suffering from that
condition. The Commissioner questions whether at the time she completed the
security questionnaire she was aware that there were gaps in her memory
relating to events which occurred in 1991, and whether she should therefore
have said that she did not know whether or not she had had any convictions at
that time. The issue which the employment judge addressed was whether, on the
assumption in Ms Sobhi’s favour that she had been unaware that there were any gaps
in her memory of events which occurred in 1991 (as to which the employment judge
made no finding), her condition was one which had “a substantial and long-term adverse
effect” on her “ability to carry out normal day-to-day activities”.
7.
Schedule 1 to the 1995 Act contains a set of provisions which supplement
section 1. It identifies, for example, what a mental impairment can include,
and when the effect of an impairment is long-term. For present purposes, it is
what the Schedule says about when an impairment is to be taken to affect
someone’s ability to carry out normal day-to-day activities which is relevant.
Para. 4(1) of the Schedule provides that an impairment is to be taken to
affect someone’s ability to carry out normal day-to-day activities only if it
affects one of eight specific capacities. The only capacity which is relevant
to the present case is that set out in para. 4(1)(g): “memory or ability to
concentrate, learn or understand”.
8.
The employment judge was obliged, of course, by section 3(3) of the Act
to take into account the guidance issued by the Secretary of State about
matters to be taken into account when determining whether someone is a disabled
person to the extent that it appeared to the employment judge to be relevant.
In view of the dates of the acts alleged to have constituted the alleged
discrimination, the relevant guidance is the one issued in 2006. Para. B1 of the guidance says that someone’s disability has a substantial effect on
their ability to carry out normal day-to-day activities if its effect is more
than minor or trivial.
The nature of Ms Sobhi’s
disability
9.
Ms Sobhi gave evidence in the employment tribunal and she was cross-examined
by Mr Pirani, but the principal evidence about her condition which the employment
judge had was a series of reports on her since August 2009 by a consultant
neuropsychiatrist, Professor Michael Kopelman, together with his answers to a
number of questions asked of him by the Commissioner’s lawyers. In his
reports, he set out what Ms Sobhi had told him about what had been happening in
her life at the time when, as she was subsequently to discover, she had been
convicted of theft and given a conditional discharge. He thought that she had
been suffering from depression at the time. He said that her loss of memory
related only to “her ability to recall events around the time of her arrest and
conviction in 1991”. He thought that her amnesia in respect of those events
was likely to be genuine in the light of the “traumatic circumstances” of her
life which she had described to him. He added that he did not think that the “relatively
small gap” in her “past remote memory” affected the day-to-day functioning of
her memory, or that it had “any implications for her ability to perform well as
a police constable now, when she is much more settled in her life”. He did not
express any view about whether she had been aware in February 2009, when she
had completed the security questionnaire, that she had any memory loss for
events which had occurred in 1991.
10.
Professor Kopelman also diagnosed Ms Sobhi as suffering from moderate
depression when he saw her – not as a result of the traumatic events in her
life in the past, but because of the circumstances which had caused her
application to become a police constable to be refused and the difficulties she
was encountering in becoming a police constable. In February 2011, Professor Kopelman
was saying that he thought that her depression had lasted for over 12 months by
then, and that it was then compounded by “considerable agitation and anxiety
relating to” the issues around her employment. He thought that her agitation
and anxiety compromised her memory and her ability to concentrate, but that her
depression did not have a substantial and long-term effect on her ability to
carry out normal day-to-day activities. That no doubt – in part at least – is why
it is not her depression which is said to constitute her disability for the
purposes of her claim of disability discrimination. In any event, it would
have been difficult for her to rely on it if her disability had to be
considered by reference to her condition in February 2009, because her
application to become a police constable had not been refused by then. As the employment
judge put it in para. 5 of his judgment:
“These symptoms of depression were brought about by her
discovery of the amnesia and/or the treatment of the [Metropolitan Police].
They were not a cause of that treatment. Depression did not cause her
disadvantage, and, indeed, is not relied upon [by] her as so doing.”
11.
That was the evidence, then, on which the employment judge reached the
conclusions which he did. He acknowledged in para. 5 of his judgement that Ms
Sobhi had been substantially disadvantaged by her amnesia in respect of her
conviction in 1991 when she completed the security questionnaire as part of her
application to become a police constable. But he went on to say in para. 6 of his
judgment:
“The fact is, there is no substantial adverse effect on [Ms
Sobhi’s] ability to carry out normal day-to-day activities by reason of this
amnesia over certain events in 1991. Such does not affect the day-to-day
functioning of her memory, as Professor Kopelman has concluded. She can
function perfectly well as a [police community support officer], and no doubt
would do so as a regular [police constable]. There is absolutely no evidence
that her normal day-to-day activities outside the work place are adversely
affected by the dissociative amnesia. [Ms Sobhi] has given no examples of what
she cannot do, which is where I should focus, because of that condition on a
day-to-day basis.”
It would have been more accurate, I
think, for him to have said that Ms Sobhi could give no such examples other
than the impact which her failure to recall her conviction had had on the way
she completed the security questionnaire.
“Normal day-to-day activities”
12.
A number of grounds of appeal have been advanced by Mr Declan O’Dempsey
on behalf of Ms Sobhi, but the core ground is that the employment judge wrongly
focused on the one occasion when Ms Sobhi’s dissociative amnesia demonstrably
disadvantage her, namely when she completed the security questionnaire which she
had to complete in order for her application to become a police constable to be
processed. That did not mean that her dissociative amnesia did not have a
substantial effect on her ability to carry out normal day-to-day activities,
and to the extent that the employment judge thought that it did, he is said to
have erred in law because he should have held that Ms Sobhi’s normal day-to-day
activities included trying to remember things – in other words, the use to
which she put her memory.
13.
I do not think that the employment judge’s focus was out of kilter. Although
the employment judge noted the one occasion when Ms Sobhi’s dissociative
amnesia demonstrably disadvantaged her, the employment judge did not equate the
requirement for her amnesia to have had a substantial and long-term adverse
effect on her ability to carry out normal day-to-day activities with her
amnesia having put her at a substantial disadvantage. He was alive to the
issues which the 1995 Act required him to address when it came to determining
whether or not she was a disabled person. The way the employment judge expressed
his conclusion in para. 6 of his judgment admits of no other view. Nor can it
be said that using one’s memory (which is something we all do every minute of
every hour of every day while we are awake) is the sort of activity
contemplated by section 1. The sort of activity contemplated by section 1 is
an activity which you use your memory for. The particular activity which might
be said to have been affected by her amnesia was the application she made to
become a police constable.
14.
The real question, therefore, is whether it was open to the employment judge
to conclude that applying to become a police constable did not amount to Ms
Sobhi’s normal day-to-day activity. If the matter had been free from
authority, I would have been inclined to think that it had been open to the employment
judge to conclude that applying to become a police constable did not amount to Ms
Sobhi’s normal day-to-day activity. Ms Sobhi’s application to become a police
constable was an entirely normal thing for a police community support officer
to do, but I am sceptical about whether it could be characterised as a
day-to-day activity. It was a one-off activity, and the use of the words
“day-to-day” in section 1(1) of the 1995 Act tend to show that one-off
activities are not to be taken into account in determining whether someone is
to be treated as disabled. That mirrors what the guidance says at para. D4:
“In general, day-to-day activities are things people do on a
regular or daily basis, and examples include shopping, reading and writing,
having a conversation or using the telephone, watching television, getting
washed and dressed, preparing and eating food, carrying out household tasks,
walking and travelling by various forms of transport, and taking part in social
activities.”
15.
This analysis is said to be inconsistent with the approach of the
Employment Appeal Tribunal in Paterson v Commissioner of
Police of the Metropolis [2007] IRLR 763 (Elias P (as he then was)
presiding). In that case, a police officer with dyslexia was found to be
significantly disadvantaged when compared with his colleagues when taking examinations
for promotion. The Employment Appeal Tribunal said at [38]:
“Where it is not disputed that the employee is suffering a
substantial disadvantage because of the effects of his or her disability in the
procedures adopted for deciding between candidates for promotion, the only
proper inference is that those effects must involve a more than trivial effect
on his ability to undertake normal day to day activities. It would
fundamentally undermine the protection which the Act is designed to provide
were it otherwise.”
The
important point is that although the activity in which Mr Paterson was
disadvantaged was the taking of examinations for promotion, it was the
impairment of his ability to carry out his normal day-to-day activities like
reading and comprehension which his dyslexia had a substantial and long-term
adverse effect on. I would have been inclined to think that Ms Sobhi’s loss of
memory did not have a substantial and long-term adverse effect on her normal
day-to-day activities in that sense because her loss of memory could not have
been more limited, related as it was to only one aspect of her past.
16.
However, there are two other passages in
the Employment Appeal Tribunal’s judgment in Paterson which
suggest that this analysis may be wrong. First, the Employment Appeal Tribunal
said at [66]:
“... carrying out an assessment or examination is properly to be
described as a normal day to day activity.”
In other words, the fact that an
activity is performed only intermittently does not make it any the less a
day-to-day activity. That could be something which distinguishes Pater son from Ms Sobhi’s case. Mr Paterson would take examinations for
promotion at various stages of his career. Applying for promotion by taking
examinations to achieve that was something which
Mr Paterson did intermittently. It could be said to be unlike Ms Sobhi’s
application to become a police constable, which was a one-off activity.
17.
Secondly, though, the Employment Appeal
Tribunal concluded in Paterson at [78] that, for the reasons
given in [72]-[77], it was bound by the decision of the European Court of
Justice in Chacón Navas v Eurest Colectividades SA [2006] IRLR 706. The relevance of that is that the 1995 Act is the domestic
implementation of Framework Directive 2000/78, and in Chacón Navas
the European Court of Justice held at [43] that “the
concept of ‘disability’ [in the Directive] must be understood as referring to a
limitation which ... hinders the participation of the person concerned in
professional life”. The European Court of Justice went on to say at [50] that Art.
5 of the Directive meant that “employers are to take appropriate measures,
where needed in a particular case, to enable a person with a disability to have
access to, participate in, or advance in employment, unless such measures would
impose a disproportionate burden on the employer.” That led the Employment
Appeal Tribunal in Paterson to conclude at [67] that in order to
give effect to the law of the European Union, section 1 of the 1995 Act had to
give
“... a meaning to day-to-day activities which encompasses the
activities which are relevant to participation in professional life.
Appropriate measures must be taken to enable a worker to advance in his or her
employment. Since the effect of [Mr Paterson’s] disability may adversely
affect promotion prospects, then it must be said to hinder participation in
professional life.”
18.
I see the force of all that. All the more so now that the European
Court of Justice in HK Danmark v Dansk
Almennyttigt Boligselskab [2013] EUECJ C-335/11 only last
month reaffirmed the principle in Chacón Navas by reference to
the need for the Directive to be interpreted in a manner which is consistent
with the United Nations Convention on the Rights of Persons with Disabilities.
You look to see whether the impairment which the worker has may hinder their
full and effective participation in professional life on an equal basis with
other workers.
19.
What all of that means is this. Although Ms Sobhi’s loss of memory was
limited to just one aspect of her past, her loss of memory in that respect had
an adverse and long-term effect on any activity of hers which required her to
recall whether she had any previous convictions. One of those activities was
applying to become a police constable. That was an activity to which the
definition of disability in section 1(1) of the 1995 Act should be treated as
applying because, despite its language, a person must be regard as a disabled
person if their condition has a substantial and long-term adverse effect on any
activity of theirs which relates to their effective participation in
professional life. Such an activity must include Ms Sobhi’s application to
become a police constable.
20.
There is an anomaly here which I find difficult to resolve. Ms Sobhi
was either not aware of her disability or not aware of the impact of her
disability on her ability to recollect her conviction when she applied to
become a police constable. Nor, of course, was the Metropolitan Police. But
since she was required to disclose her previous conviction when applying to
become a police constable, and since that requirement might be said to have
placed her at a substantial disadvantage in comparison with people who could
remember any previous convictions they had, and who therefore disclosed them on
the appropriate form, the Metropolitan Police would have been under a duty to
take such steps as were reasonable to prevent that requirement from having that
effect. It is a little difficult to see what steps they could have taken if
they did not know of Ms Sobhi’s memory loss. That might suggest that her
memory loss was not the kind of disability which the Directive contemplated.
Conclusion
21.
There are, as I have said, a number of subsidiary grounds
of appeal, but none of them need to be considered in the light of my conclusion
on this core ground of appeal. It follows that Ms Sobhi’s appeal must be
allowed, the employment judge’s finding that she was not a disabled person must
be set aside, as must his order that her claim of discrimination on the ground
of her disability be dismissed, and the case must be remitted to the employment
tribunal for it to consider whether in February 2009 when Ms Sobhi completed
the security questionnaire, she knew of her amnesia relating to various events
that occurred in 1991, because if she did, that goes to the question whether
she should have said that she did not know whether there was anything in 1991 which
she had to disclose to the Metropolitan Police. The answer to that question,
as well as what this judgment says about what constitutes normal day-to-day
activities, may have an impact on what the appropriate finding should be as to
whether the effect which her amnesia had on her ability to carry out her normal
day-to-day activities should be characterised as substantial. I shall hear
from the parties on whether that remission should be to the same employment judge
or a different one, but at present my strong inclination is that it should be
remitted to the same employment judge.
