England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Wall)

		Royal Courts of Justice Strand London WC2 Monday, 18th March 2002

Monday, 18th March 2002

1. LORD JUSTICE PETER GIBSON: I will ask Mummery LJ to give the first judgment.
2. LORD JUSTICE MUMMERY: This is a renewed application for permission to appeal. The application is made by Mr Trevor Siddle, counsel on behalf of the applicant in the proceedings, Miss Rachel Condappa. The decision which she wishes to appeal is that of the Employment Appeal Tribunal on 4th December 2001. The Employment Appeal Tribunal dismissed the applicant's appeal against the decision of the Employment Tribunal on the ground that there was no error of law in the decision.
3. An application was made to this court for permission to appeal, which was refused by me on paper on 6th February on the basis that it had no real prospect of success, that the decision of the Employment Tribunal that Mrs Condappa was not a person disabled within the meaning of the 1995 Act was one of fact, and that there was no detectible error of law in the extended reasons of the Tribunal leading to that conclusion.
4. The background to the proceedings is that Mrs Condappa was employed as a midwifery sister. Initially she was an employee of the Newham Maternity Hospital. She was employed as a midwifery sister by the Newham Healthcare Trust from 5th September 1978. She had had back trouble for some time. She had suffered a back injury at home in 1987, as a result of which she was away from work between November 1987 and July 1988. There were further absences between 1988 and 1997. In February 1998 she was absent again with back pain. The crucial date for the purposes of the proceedings, which were subsequently brought by her in the Employment Tribunal, was 21st May 1998, when she suffered an injury to her back referred to in the Extended Reasons as follows:

"23On 21st May 1998 the Applicant suffered an acute back injury arising from the incident with the patient."

5. On 14th January 1999 Mrs Condappa resigned. On 8th February 1999 she presented to the Employment Tribunal an originating application in which she made complaints of constructive dismissal, breach of contract, unfair dismissal and breach of the Disability Discrimination Act 1995. A detailed statement of case was attached to the application.
6. The matter came before the Employment Tribunal. The Employment Tribunal held in the Extended Reasons sent to the parties on 24th February 2000 that the applicant was not a person disabled within the meaning of the Disability Discrimination Act 1995. They also held that she was not constructively unfairly dismissed and that the respondents had not breached her contract of employment. We are only concerned on this application with the decision under the Disability Discrimination Act.
7. At the hearing the Employment Tribunal heard evidence from two doctors as well as a GP, Dr Dickson. There was evidence from Mr Murphy, a consultant, who said that Mrs Condappa was disabled after the incident in May 1998. It was agreed by him with Mr Podmore that she was not disabled prior to that date. It was Mr Podmore's view that she was not disabled after that date, though both Mr Podmore and Mr Murphy were in agreement, as recorded in paragraph 25 of the Extended Reasons, that the incident of May 1998 set off an exacerbation of her condition which would have happened at some point in time in any event.
8. The Tribunal in their Extended Reasons concluded:

"...having heard the medical evidence and submissions from both the Applicant and the Respondent and having observed the applicant whilst in the Tribunal that she was not a person whom it could be said that the problem she had with her back had a substantial adverse effect on her ability to carry out normal day to day activities."

9. The Tribunal continued in paragraph 31 of the Extended Reasons:

"It clearly did have an effect on her but it was one, in common with so many other people, that she could manage. Her problems were not such that it was only with the use of drugs that she was able to perform these jobs as the medical evidence was such that the drugs would not have an impact on her ability to perform these tasks."

10. The Tribunal concluded in paragraph 32:

"We therefore concluded that the Applicant was not a disabled person within the meaning of section 1 of the Disability Discrimination Act 1995."

11. The Tribunal also made findings in the Extended Reasons that, although the applicant suffered from a bad back, adjustments had been made to deal with it and that she had suffered no substantial adverse effects on her ability to carry out normal day-to-day activities.
12. When the matter came to the Employment Appeal Tribunal, the main point which was taken and rejected by the Employment Appeal Tribunal but is resurrected on this application was that there was an error of law in the approach of the Employment Tribunal in considering whether the applicant was disabled at the time of the hearing, instead of considering, as it should have done, whether or not she was disabled at the time of the relevant period, the relevant period, in Mr Siddle's submission, being the period after 21st May 1998 until her resignation on 14th January 1999 with, in his submission, the disability continuing thereafter. In making this point, Mr Siddle has referred to the definition of "disability" in section 1 of the 1995 Act.

"(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..."

13. Section 2 refers to "past disabilities", and particular emphasis was placed on the wording of section 2(4), which provides:

"In any proceedings under Part II or Part III of this Act, the question whether a person had a disability at a particular time (`the relevant time') shall be determined, for the purposes of this section, as if the provisions of, or made under, this Act in force when the act complained of was done had been in force at the relevant time."

14. The substance of Mr Siddle's submission was that there was no reference in the reasoning of the Employment Tribunal to the specific question of disability between the relevant dates of 21st May 1998 and 14th January 1999. He referred to parts of the Extended Reasons, pointing out that they were phrased in the present tense. He said that the Employment Appeal Tribunal had itself expressed a view that there was an ambiguity in the Employment Tribunal's reasoning, but Mr Siddle disputed the conclusion of the Employment Appeal Tribunal that there is no error of law in the decision of the Employment Tribunal.
15. On this renewed application in his oral submissions Mr Siddle has reiterated his contention that there was an error of law in the Employment Tribunal's failure to consider the medical condition and disability of the applicant at the relevant date. He pointed in particular to the observations which the Employment Tribunal made of the applicant's condition as at the date of the hearing, which was not, he submitted, the relevant date. There was, he said, no specific reference in the Extended Reasons to the crucial intervening period.
16. On this point, I am unable to agree with Mr Siddle that there is an error of law in the decision of the Employment Tribunal. He accepts, of course, that he has to demonstrate that there is an error of law, as the jurisdiction of this court is limited to questions of law arising from the decision of the Employment Tribunal. In my judgment, it is clear, on a fair reading of the Extended Reasons, that the Tribunal did take into account the disability from which the applicant claimed she was suffering at the relevant date, as well as observing her condition at the date of the hearing. I would refer in particular to the paragraphs in the part of the Extended Reasons which deal with the applicant's medical condition. It is clear that the Tribunal were aware, as stated in paragraph 23, that the ability was claimed to have been suffered from 21st May 1998. It is clear from paragraph 24, which summarises the position of the two main medical witnesses Mr Murphy and Mr Podmore, that both of those witnesses were looking at her condition in the relevant period. I would refer in particular to paragraph 25, where it is stated that both doctors agree that prior to May 1998 the Applicant was not a disabled person as defined by the 1995 Act. There was then a difference of opinion recorded:

"Mr Murphy is of the view that the Applicant's subsequent deterioration after May 1998 now puts her into that category. Mr Podmore disagrees."

17. There is a detailed consideration of the various tasks which the applicant was capable of doing.
18. The Tribunal finished that paragraph by recording Mr Murphy's view as follows:

"Mr Murphy's view that the decision to allocate the Applicant to ward duties even with the provision of never lifting alone was a poor choice and that after the incident on 21 May 1998 the Applicant was disabled within the meaning of the Act."

19. The Tribunal then said in paragraph 26:

"The issue for the Tribunal is whether the Applicant is disabled within the meaning of the Disability Discrimination Act."

20. The Tribunal referred to the guidance in paragraph 27 of the Extended Reasons, and to her various abilities to do tasks in paragraph 28. They said in paragraph 29:

"...it is necessary for [the applicant] to prove that she is a person disabled within the meaning of the Act."

21. They then stated their conclusions in paragraphs 31 and 32. In paragraph 31 it is stated as follows:

"We therefore concluded having heard the medical evidence and the submissions from both the Applicant and the Respondent and having observed the Applicant whilst in the Tribunal that she was not a person whom it could be said that the problem she had with her back had a substantial adverse effect on her ability to carry out normal day to day activities."

22. Then in paragraph 32 they said:

"We therefore concluded that the Applicant was not a disabled person within the meaning of section 1 of the Disability Discrimination Act 1995."

23. In my judgment when all those passages are read together, notwithstanding the changes that there are from one paragraph to another in the tenses, it is clear that the Tribunal was considering the position of Mrs Condappa not only at the time of the hearing of the Tribunal, at which she was complaining of a continuing disability, but also at the relevant time. This is particularly clear, in my judgment, from the way in which the Tribunal has set out the medical evidence of Mr Murphy and Mr Podmore, which clearly focuses on the disability over the relevant period. It seems to me that, although the matter could have been more clearly expressed at various points, the Tribunal was not in error in law in its approach to the disability from which the applicant claimed she was suffering. They looked at the relevant period, as well as at the continuation beyond that relevant period. I would therefore hold that there is no error of law on this point.
24. As has been said many times, it is not appropriate to consider the Extended Reasons of the Employment Tribunal with a tooth comb. One has to read it as a whole in a fair and reasonable manner. In my judgment, on taking that approach with these Extended Reasons, there is no prospect of the appeal succeeding on that point.
25. With that, in my judgment, falls the second point, which relates specifically to the long term effect and to the provisions of paragraph 2 of Schedule 1 to the 1995 Act. As Mr Siddle himself accepted, the second ground (which is dealt with in paragraphs 6-10 of his skeleton argument) really follows from the first ground, there was nothing further to it. For the same reasons as I have given in relation to the relevant period point, I would hold that that ground has no real prospect of success.
26. For those reasons, I would refuse this renewed application.
27. LORD JUSTICE PETER GIBSON: I agree.
Order: Application dismissed.