The Claimant was suffering from PTSD, the symptoms of which did not start to show until June 2015. The issue in this appeal was the date at which the Claimant could be said to be disabled for the purposes of disability discrimination proceedings. An EJ said that

'35. It is obviously difficult to be exact in a claim of this nature, but bearing in mind all of the above matters I conclude that the impairment was having a substantial adverse effect on the claimant's day-to-day activities by April 2016, and although it had not lasted 12 months by that time, nonetheless it is reasonable to conclude (because it had already lasted for at least nine months) that it was likely to last 12 months.

1. In conclusion therefore I find that the claimant was a disabled person for the purposes of these proceedings with effect from April 2016.'

The Claimant appealed on the basis that the Employment Judge failed to apply the correct interpretation of the term "likely" in this context. It was argued that the Judge erred by requiring the Claimant to show that 12 months' duration and/or a later statement from Occupational Health confirming the existence of a disability was something which could "necessarily predict" rather than (as the House of Lords decision in SCA Packaging Ltd v Boyle [2009] ICR 1056 confirmed to be the correct text) something which could "could well happen". That interpretation was akin to the Judge having said that the Claimant had to show that a 12 months' duration "must" be predicted.

The EAT dismissed the appeal. The Judge used the word "necessarily" in the context of the predictive nature of the exercise, which he was undertaking. He was balancing a view taken by the Occupational Health Practitioner in May 2016, with evidence available from June 2015 and September 2015, and indicating that it could not be said whether or not someone might have formed a view earlier as to the likely duration of the impairment. The Judge had applied the correct test.