Case No: A1/2001/2127
Neutral Citation Number: [2002] EWCA Civ 1074
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 26th July 2002 
Before :

THE VICE - CHANCELLOR
LORD JUSTICE MUMMERY
and 
MR JUSTICE WALL
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Between :
	DANIEL McNICOL	Appellant	
	
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BALFOUR BEATTY RAIL MAINTENANCE LIMITED	
Respondent	

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(Transcript of the Handed Down Judgment of
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MR DANIEL McNICOL (The Appellant in person) 
MR OLIVER CAMPBELL(instructed by Kennedys) for the Respondent
MISS JENNIFER EADY (instructed by Rebecca Howard, Legal Officer for the Disability Rights Commission)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Mummery : 
Introduction
1.	This appeal turns on the construction and application of section 1 of the Disability Discrimination Act 1995 (the 1995 Act). It contains brief definitions of “disability” and “disabled person”:
 “(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has 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.
(2) In this Act “disabled person” means a person who has a disability.”
2.	Under Schedule 1
“ 1 (1) “Mental impairment” includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness.”
3.	The only point in this appeal is whether the Employment Tribunal erred in law in holding that Mr Daniel McNicol, the applicant, was not suffering from a disability, so that he was not entitled to pursue his claim of disability discrimination against his employers, Balfour Beatty Rail Maintenance Limited (Balfour Beatty). He asserted, and they denied, that, in breach of the 1995 Act, he had been refused the right to work and that there had been a failure to make any reasonable adjustments to his employment arrangements to ensure that he was not substantially disadvantaged.
4.	In my judgment Mr McNicol’s appeal fails on the short ground that no question of law arises from the decision of the Employment Tribunal. An appeal from the decision of an Employment Tribunal only lies on a question of law. Mr McNicol’s appeal is an attempt to challenge facts, which the Employment Tribunal was entitled, on the available evidence, to find on the issue of disability.
Proceedings in the Employment Tribunal
5.	In his originating application presented to the Employment Tribunal on 9 October 1998 Mr McNicol, who has been employed as a trackman on the railways since 14 December 1992, claimed that, in the course of his employment in October 1995, a vehicle which he was driving went over a pothole, causing him to be jolted upwards towards the roof. Since then he has been off work. He has reported a continuing injury to his back and his lower neck.  He identified his alleged disability as follows 
 “As a result of an accident at work on 23/10/95 I suffered a compression injury to my spine which has left me quite severely disabled.”
6.	There was no evidence before the Employment Tribunal of any organic physical pathology to establish the physical organic injury that formed the foundation of his claim.  No case was ever advanced by Mr McNicol, and no evidence was ever adduced by him to establish, that his back pain was the result of, or consisted of, a clinically well-recognised mental illness or that it fitted the medical description of functional or psychological “overlay.”
7.	In these circumstances the disability point was determined against Mr McNicol by the Employment Tribunal sitting at Nottingham on 30 September 1999 on the  hearing of a preliminary issue whether Mr McNicol had a “disability” within the meaning of that expression in section 1. The hearing of the preliminary issue, at which Mr McNicol was represented, had been directed by the Regional Chairman on 24 August 1999, following a hearing for directions on 13 January 1999,  at which Balfour Beatty had successfully applied for the proceedings to be stayed until such time as Mr McNicol submitted himself for medical examination. The application was opposed by Mr McNicol, then appearing in person, on the basis that there were sufficient medical reports in existence and that no further medical reports were likely to throw new light on his problems.
8.	In the Extended Reasons, dated 8 March 1999, for his decision to take the exceptional step of granting the stay, the very experienced Regional Chairman (Mr JK Macmillan) referred to medical reports in existence in the proceedings for personal injuries started by Mr McNicol against Balfour Beatty. The parties consented to the Regional Chairman seeing the reports. The longest and most thorough report was by a consultant spinal surgeon, Mr Rabi Khazim FRCS in August 1998. He could not explain Mr McNicol’s present continuous symptoms, lasting beyond one year after the accident, on the basis of organic pathology. In his covering letter to Balfour Beatty’s solicitors he said
 “Please note that I feel that a psychiatric or clinical psychologist’s opinion is indicated in this case.”     
9.	The Regional Chairman said in Paragraph 10:
“ In any case where pain lies at the heart of the alleged substantial impairment, there is inevitably an element of subjectivity in any medical report. In crude terms the doctor is reporting what the patient is reporting to the doctor. One necessarily, therefore, looks for objective support in the form of physiological causes. If no physiological cause can be found, one considers the possibility of psychological causes. But as no psychological causes are alleged in this case, that is a problem I need not address. Where there is not only a question mark over the issue of pain, but over whether there is a substantial adverse effect at all and there is no physiological explanation for the cause of that substantial adverse effect, precisely the same considerations apply.”  
10.	The Employment Tribunal heard and accepted Mr Khazim’s updated evidence set out in his report dated 30 June 1999 on his further examination of Mr McNicol on 23 June 1999. On page 20 of his report Mr Khazim concluded that Mr McNicol did not have a physical impairment that could explain his symptons and disability. He said:
 “…..despite Mr McNicol’s report of pain symptoms and resultant limitations in doing his normal day to day activities, as mentioned  earlier in the functional limitations section, it is my opinion that on balance these are not as a result of physical impairment. These are not as a result of physical injury to the cervical and lumbar spines, sustained on 23/10/94. As such I believe that the symptoms and related disability Mr McNicol is complaining of can be explained either on the basis of a mental psychological or psychiatric impairment, which is produced on a subconscious basis or on the basis of conscious production or exaggeration of these symptoms. I am not an expert on the psychological or psychiatric aspects of course.”   
11.	The Employment Tribunal had no hesitation in accepting Mr Khazim’s evidence in every respect. In Extended Reasons sent to the parties on 27 October 1999 the tribunal stated that it was not assisted by the evidence of Mr Latham, a disability employment adviser called by Mr McNicol, as he simply agreed that he accepted what Mr McNicol told him and that it was not part of his function to investigate whether there was indeed a disability. The tribunal also read medical reports by Dr Wells, a general practitioner in occupational health medicine. Mr McNicol had sought a witness order against him, but he was unable to attend the hearing. The tribunal concluded that Dr Wells could not have given any useful evidence to contradict or to add to the evidence of Mr Khazim or on matters of a specialist psychiatric nature, as he had felt it necessary to refer Mr McNicol to a specialist for proper assessment of his disabilities.
12.	The Employment Tribunal pointed out that the claim had throughout been advanced as one of physical impairment. This had been made crystal clear at the hearing before the Regional Chairman on 13 January 1999. The tribunal considered “functional overlay,” accepting that it was quite possible for a person to suffer pain which has no physical cause, but rejected the submission that a mental condition which causes pain is, by reason of that, a physical impairment. It said that there was no evidence before it of any functional overlay or of any clinically well recognised mental illness.    
13.	The tribunal made a separate and distinct finding that it was not satisfied that Mr McNicol had suffered from substantial long term adverse effects on his ability to carry out his normal day to day activities. It expressed doubts as to the credibility of his evidence on a number of points, having been shown a video secretly made of him on the day before the hearing. It concluded that the contents of the video were inconsistent with the allegations of disability made by him to the doctors and to the tribunal. In view of that finding, which is not appealed, Mr McNicol would have failed in his discrimination claim, even if the tribunal had concluded that he had a physical or mental impairment within section 1 of the 1995 Act.
The Employment Appeal Tribunal
14.	Mr McNicol’s appeal to the Employment Appeal Tribunal was dismissed on 27 July 2001. In a valuable judgment on behalf of the Appeal Tribunal by Mr Commissioner Howell QC, covering both this case and the case of Rugamer (see paragraph 21 below),  it was held that there was no material error of law in the decision of the tribunal in either case. In particular, neither tribunal had erred in law in declining to accept, on the evidence presented to them, that functional overlay, which appeared to be the only explanation for the restriction of the activities of the respective applicants, amounted to physical impairment within the meaning of section 1. The Appeal Tribunal was persuaded to grant permission to appeal on the ground that the points on the meaning of physical and mental impairment were of general importance.
15.	Mr McNicol was also unsuccessful in his appeal against the admission in evidence of the video, but he was not given permission by the Appeal Tribunal to appeal on that point. As there had been no application to this court for permission to appeal, he was not entitled to raise the issue of video evidence. In any event I would accept the submission of Mr Oliver Campbell, on behalf of Balfour Beatty, that there was no procedural or other unfairness in the tribunal’s acceptance of that evidence. It was relevant to the credibility of Mr McNicol’s evidence on the long term adverse effects of his ability to carry out normal day to day activities and its exclusion from evidence would not have affected the decision of the tribunal on the impairment point.  

Conclusion
16.	In my judgment only two general points are worth making. This appeal highlights the crucial importance (a) of applicants making clear the nature of the impairment  on  which the claim of discrimination is advanced and (b) of both parties obtaining relevant medical evidence on the issue of impairment. As happened in this case, a directions hearing should be held by the Chairman of the tribunal to clarify the issues and to ascertain the nature of the evidence which the parties intend to adduce.
17.	The approach of the tribunal should be that the term “impairment” in this context bears its ordinary and natural meaning. It is clear from Schedule 1 to the 1995 Act that impairment may result from an illness or it may consist of an illness, provided that, in the case of mental impairment, it must be a “clinically well-recognised illness.”  Apart from this there is no statutory description or definition of physical or mental “impairment.” The Guidance issued under section 3 of the 1995 Act by the Department for Education and Employment on 25 July 1996 states in the Introduction section in Part 1 that “it is not necessary to consider how an impairment was caused” and some examples of physical and mental impairment are given (e.g. sensory impairments affecting sight or hearing), but no general definition or description of “impairment” is attempted.
18.	I agree with the recent observations of Lindsay J  in College of Ripon &York St John v. Hobbs [2002] IRLR 185 at paragraph 32:

“Nor does anything in the Act or the Guidance expressly require that the primary task of the ascertainment of the presence or absence of physical impairment has to, or is likely to, involve any distinctions, scrupulously to be observed, between an underlying fault, shortcoming or defect of or in the body on the one hand and evidence of the manifestations or effects thereof on the other. The Act contemplates (certainly in relation to mental impairment) that an impairment can be something that results from an illness as opposed to itself being the illness- Sch. 1 para 1(1).  It can thus be cause or effect. No rigid distinction seems to be insisted on and the blurring which occurs in ordinary usage would seem to be something the Act is prepared to tolerate. Nor is there anything there to be found to restrict the tribunal’s ability, so familiar to tribunals in other parts of discrimination law, to draw inferences….” 
19.	It is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment with the stated effects. Such a decision can and should be made without substituting for the statutory language a different word or form of words in an ambitious and unnecessary attempt to describe or to define the concept of  “impairment.” The essential question in each case is whether, on sensible interpretation of the relevant evidence, including the expert medical evidence and reasonable inferences which can be made from all the evidence, the applicant can fairly be described as having a physical or mental impairment. The ordinary meaning of the statutory language and of the Guidance issued by the Secretary of State under section 3 (1) is sufficiently clear to enable the tribunal to answer the question on the basis of the evidence. The decision of the Employment Tribunal in this case is consistent with that approach and does not contain any error of law.             
 Additional Points
20.	I should say something about unexpected developments in the period immediately leading up to the hearing of this appeal.
21.	Until a very late stage this appeal was listed for hearing along with another appeal on section 1 of the 1995 Act from the Employment Appeal Tribunal in the case of Rugamer v. Sony Music Entertainment UK Limited, now reported at [2001] IRLR 644. In the middle of May the Civil Appeals Office received a letter from the Disability Rights Commission (DRC) seeking to be joined as a party to the two appeals. I refused to grant the application, as joinder was not necessary for the determination of the appeals and it would increase the cost and length of the hearing at which the parties would be legally represented. I added that there was no objection to the DRC attending the hearing with counsel and providing assistance to the representatives of the parties. I also granted liberty to renew the application at the hearing, provided that a skeleton argument was supplied 10 days before the hearing. A detailed skeleton was sent on 31 May 2002 explaining that the DRC has an interest in two areas of law raised by the appeals: first, the proper construction of section 1 in Part 1 of the 1995 Act, in particular the application of the definitions in section 1 to conditions described as functional or psychological “overlay”; and, secondly, the functions of the Employment Tribunal in relation to claims under the 1995 Act, in particular whether the function of the Employment Tribunal is or should be  “quasi-inquisitorial” when dealing with the issue whether a person is disabled.       
22.	The court was notified of two further developments before the hearing fixed for 12 June.  The solicitors acting for Mr McNicol informed the Civil Appeals Office that his Public Funding Certificate had been revoked and that he proposed to act in person. A skeleton argument had already been prepared on his behalf by his former counsel, Mr Rohan Pirani. The court heard detailed oral submissions from Mr McNicol and read his counsel’s written submissions.
23.	On 7 June the Civil Appeals Office was informed by the DRC that Mr Rugamer had settled his claim and would be withdrawing his appeal and that, as Mr McNicol  was now acting in person, it would renew its application to make representations. Miss Jennifer Eady appeared for the DRC at the hearing. The court indicated that it was willing to receive submissions from the DRC relating to the issues arising on the appeal, in addition to those made by Mr McNicol in person and by Mr Oliver Campbell, counsel for Balfour Beatty. The parties did not object.
24.	Miss Eady summarised the concern of the DRC about tribunals defining  “impairment” by reference to a particular diagnosis of the underlying illness that gives rise to the impairment or to the underlying cause of the impairment. She argued that the focus of the statutory definition was on the fact and effects of loss of function and not on the precise cause or diagnosis of the applicant’s condition. She contended that it may be difficult in some cases to make a distinction between mental and physical conditions and that impairments may be multi-factorial in origin.
25.	I have already indicated the approach which the tribunals should take on the definition and causes of impairment and to the differences between physical and mental impairment. The issue on this appeal is a short one, which does not call for a more detailed discussion of these topics and I decline to enter into the question of functional overlay canvassed in argument. It was not an issue in this case and there was no evidence about it.    
26.	As to the function of the tribunal it was submitted that it should adopt an inquisitorial and more pro-active role in disability discrimination cases, as they can be complex and involve applicants,  whose impairment leads them to minimise or to offer inaccurate diagnoses of their conditions and of the effects of their impairment. I do not think that it would be helpful to describe the role the Employment Tribunal as “inquisitorial” or as “pro-active.” Its role is to adjudicate on disputes between the parties on issues of fact and law.  I agree with the guidance recently given by Lindsay J in Morgan v. Staffordshire University [2002] IRLR 190 in paragraph 20. The onus is on the applicant to prove the impairment on the conventional balance of probabilities. In many cases there will be no issue about impairment. If there is an issue on impairment, evidence will be needed to prove impairment. Some will be difficult borderline cases. It is not, however, the duty of the tribunal to obtain evidence or to ensure that adequate medical evidence is obtained by the parties. That is a matter for the parties and their advisers. Sensible and sensitive use of the tribunal’s flexible and informal procedures and its case management powers enable it to do justice on this issue by reminding the parties at the directions hearing of the need in most cases for qualified and informed medical evidence, bearing in mind that an unrepresented person may need some explanation about what is involved and what is required and also bearing in mind the cost of obtaining such evidence, the need to keep costs down and the limited resources available to many parties in the Employment Tribunal. The tribunal may also grant an adjournment where it is appropriate for evidence to be obtained on the issue of impairment.
27.	In this case Mr McNicol can have no valid complaint about the fairness of the procedure followed at the directions hearing and at the hearing of the preliminary issue.
28.	I would add this general observation. Although I recognise that the DRC, established by the Disability Rights Commission Act 1999, has important statutory duties to work towards the elimination of disability discrimination, to promote equal opportunities for disabled persons, to take steps to encourage good practice in the treatment of disabled persons and to keep under review the working of the 1995 Act, those duties do not entitle the DRC, as such, to make representations to a tribunal or court in cases to which it is not a party. It is only in exceptional circumstances that a tribunal or court will consider it appropriate to receive representations from the DRC.
Result
29.	I would dismiss this appeal. 
30.	Mr Justice Wall – I agree. 
31.	The Vice-Chancellor – I also agree.  
Order: Appeal dismissed with costs to be paid by the appellant, summarily assessed. Leave to appeal to the House of Lords refused.
(Order does not form part of the approved judgment)