Title: LORD JOHNSTON:
Author: Joyce Player
Last saved by: joe.ury
Company: Employment Tribunal Service

Appeal No. EATS/0022/04

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 23 September 2004

Before
THE HONOURABLE LORD JOHNSTON
MR J M KEENAN
MR M G SMITH

WALLACE MILLAR	APPELLANT

THE COMMISSIONERS OF INLAND REVENUE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant

Mr D Loughney, Representative
Of-
Edinburgh Trade Union Council
The Basement
26 Albany Street
EDINBURGH   EH1 3QH

For the Respondent

Mr T Glennie, Solicitor
Of
Inland Revenue
Solicitor’s Office
Clarendon House
114-116 George Street
EDINBURGH   EH2 4LH

SUMMARY

DISABILITY DISCRIMINATION

Disability – whether exists

LORD JOHNSTON:

1.	This is an appeal at the instance of the employee against a decision of the Employment Tribunal on a preliminary question as to whether or not the appellant should be regarded as disabled within the meaning of the Disability Discrimination Act 1995, so as to support a claim for discrimination in respect of that legislation.

2.	There were substantial medical reports before the Tribunal which the Tribunal summarise as follows:-

“We heard evidence from the applicant and from Lynda Millar, his wife, and on behalf of the respondents from Dr Robert Grant, a consultant neurologist at the Western General Hospital.  We were shown a large number of medical reports on the applicant, together with related correspondence, and on the basis of the evidence we find the following facts to have been proved or not in dispute.

The applicant commenced work as an Administrative Officer with the respondents in February 1992, and in 1996 he was transferred to their offices in Trinity Park House in Edinburgh.  On 28 July 1998, while at work he suffered a fall in the office toilets, the exact circumstances of which he cannot recall, but he struck his head against a wash hand basin and was briefly unconscious.  He was seen by the first aider, his wife was called and she took him home.  The following day, he felt aching in his left side and neck, and he consulted his general practitioner, Dr A B Blyth, who referred him to the Accident and Emergency Department of Edinburgh Royal Infirmary, where he was examined and no evidence found of serious injury, but he was diagnosed as having neck strain.

Some time thereafter, he began to experience drooping of his left eyelid, which he associated with sensitivity to bright light which he was also experiencing; he also began to suffer from headaches, which he associated with the problems with his eyes.  He returned to work, but found difficulty in using his computer because of glare from the VDU screen.  He was then transferred to the Department of Clinical Neurosciences at the Western General, where he was seen by Dr Christian Lueck, a consultant neurologist, who instructed a number of tests, including an MRI scan.  This was carried out in December, and revealed no abnormalities, and an examination by Dr Lueck and Dr Gawn McIlwaine, a consultant ophthalmologist, concluded that there was no abnormality in his vision, that the ptosis (drooping eyelid) appeared to result from a depression of his left eyebrow, and that they could find no structural cause for these.  The photophobia, (sensitivity to light) could occur in the absence of structural damage (as was the case with migraine), and they suggested the use of dark glasses.  Their prognosis was that there was nothing which would stop him getting better, nor need stop him working.

The applicant’s condition did not improve, and in June 1999, Dr Blyth again referred him to Dr Lueck, who referred him in turn to Dr G D Moran, a consultant neurophysiologist, who described his symptoms as very unusual and proposed further tests, including an EMG.  In December, Dr Lueck reported to the applicant’s general practitioner that the results of this showed no abnormality at all.

Following further approaches from the applicant himself and Dr Blyth on his behalf, Dr Lueck suggested that the applicant be seen by staff in his department who were conducting a study on unexplained motor symptoms jointly with the Liaison Psychiatry Department.  This resulted in his being seen on January 2001 by Dr Jon Stone, Registrar in neuropsychiatry, who encouraged him to see his problem as photophobia, which could be treated by graded exposure to light, and also discussed with him the interaction of psychological factors.  He continued to attend Dr Stone’s clinics on a regular basis throughout 2001, and following his clinic in June, Dr Stone reported him as making slow but definite progress.  Dr Stone also entered into correspondence with the respondents’ occupational health adviser and with the respondents’ human resources section regarding possible arrangements for his return to work.

Over this period, the applicant was also seen on a number of occasions by Drs Saravolac and Freeland, specialists in occupational medicine, who acted as advisers to the respondents, to assess his condition and advise on the prospects of his return to work and the arrangements which they considered should be made for this purpose.  In his report on a meeting with the applicant on 2 October 2000, Dr Freeland stated:

There appears to be no organic cause for the ptosis currently suffered by Mr Millar.  His complaints of photophobia and ptosis cannot be logically explained by the trauma he experienced during the accident.  The diagnosis by default has resulted in functional ptosis being the preferred option.

It was clear from the applicant’s own evidence to the tribunal that he suffered considerable difficulty in coping with situations where he was exposed to particularly bright light.  These included being outdoors in conditions of bright sunlight, which was a problem both in general, and had in particular reduced his participation in gardening activities; while this was predominantly a problem of the summer months, during the winter months he experienced problems indoors through being in artificially lit rooms for longer periods.  He also experienced problems with driving a car, being unable to drive at night due to the glare of headlights, in watching television, which he could only do for relatively short periods of time, and in operating a computer, because of the glare from the VDU.  In additions to the problems caused to his eye becoming watery and leading to blurred vision, he also suffered from headaches, which he described as very severe, and while they were susceptible to treatment by painkillers and rest, at their onset he was unable to perform any other activity.  The degree of severity of these problems varied over the period, but they were always significant, and remained so.

For the purposes of this hearing, the applicant was seen by Dr Grant on 20 July 2003, and in a supplementary report written in the light of the provisions of the Disability Discrimination Act, he stated

Mr Millar complains of many symptoms: eg light sensitivity in left eye with resultant partial closure of the eye, headache/neck ache, numbness on left cheek, symptoms of depression.

a.	On physical examination I cannot find any physical eye signs to account for the subjective complaint of light sensitivity.
b.	The partial closure of the eye is voluntary or subconscious, rather than as the result of a damage to nerve, muscle, subcutaneous tissues or bone.
c.	I cannot find any physical signs that might provide a clear physical cause for the headaches.  I assume this a reaction to light sensitivity or alternatively but less likely to partial closure of the eye.
d.	There are some subjective signs of numbness over the left cheek, that could approximately fit in to the cutaneous distribution of the infra-orbital nerve.  There are not however any signs to suggest previous fracture of the maxilla or inferior orbit and no history to suggest severe bruising around the eye or cheek as a result of the accident.
e.	Mr Millar has had symptoms of depression and has been treated as such.  I am not qualified to comment further on this aspect of his symptoms.”

3.	It is sufficient for the purposes of this appeal to note, as was submitted by Mr Loughney to us on behalf of the appellant, that nobody who has examined the appellant criticises his credibility when he describes the symptoms which are set out above, and, quite rightly nor did Mr Glennie, appearing for the Inland Revenue at the initial hearing.  He repeated that position before us.

4.	However, it is important to appreciate that whatever may be the symptoms that are complained of as supporting a claim for disability, they must have some form of medical base whether by means of physical or mental.  Symptoms themselves are not sufficient and if that requires any support in law the case of Goodwin v Patent Office [1999] IRLR 4 will provide it.

5.	In these circumstances, although there is a question as to whether or not the Tribunal misunderstood the effect of the case of McNicol, which was clearly determined on the issue of credibility, what matters is whether or not the Tribunal were entitled to conclude that they had insufficient evidence against the background of medical findings that there was no physical impairment that could be discovered that would base the symptoms, or to direct them to a mental impairment.  Indeed, such was not the case that was originally presented to the Tribunal (see the IT1).

6.	On this simple point, therefore, we do not consider it sufficient for there to be evidence of symptoms which is not challenged.  What is required is some indication of the medical base for those symptoms, and, given the content of the medical report as quoted by the Tribunal which formed no base for a physical impairment, the absence of any evidence of a psychological overlay or problem which would form the basis for a mental impairment, entitles, and, indeed, obliges the Tribunal to reach the conclusion it did.

7.	In these circumstances we consider the Tribunal was bound, upon the evidence, to find no evidence of physical impairment and no evidence of mental impairment, notwithstanding the apparent presence of symptoms.  That being so this appeal must be refused.

8.	The case is to be remitted back to the Employment Tribunal for consideration of the claim for unfair dismissal.

© Copyright 2004

EATS/0022/04

EATS/0022/04
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