Scottish Court of Session Decisions

[1] This is an appeal by Law Hospital NHS Trust (hereinafter referred to as "the appellants") against the decision of the Employment Appeal Tribunal dated 21 January 2000 dismissing an appeal by the appellants against a preliminary finding by the employment tribunal that the applicant, Mrs. Elizabeth Rush (hereinafter referred to as "the respondent") should be regarded as disabled in terms of the Disability Discrimination Act 1995.

[2] The facts are set out in the written decision of the employment tribunal dated 17 June 1999. The respondent claimed to have been employed as a staff nurse by the appellants from 30 August 1976 to 24 January 1999 when she alleged unfair dismissal and disability discrimination. The appellants admitted that they had dismissed the respondent but denied that the dismissal was unfair or that she had been discriminated against on the grounds of disability. In the event, a hearing was held on 21 May 1999 and it was restricted to the sole question of whether or not the respondent had a disability in terms of the Disability Discrimination Act 1995.

[3] Section 1 of the 1995 Act is in the following terms:

[4] Section 3(3) of the Act provides:

[5] Subsection (12) provides that "guidance" means guidance issued by the Secretary of State under the section. Guidance has in fact been issued by the Secretary of State under section 3.

[6] Paragraph 4(1) of Schedule 1 to the Act is in the following terms:

[7] Evidence was led by both parties and the employment tribunal set out in their decision the material facts which had been established. The respondent had commenced employment with the appellants as a staff nurse and she worked constant night-shift at Law Hospital. On 21 September 1984 she was working in Ward 17 which had a number of coronary care patients. While she was assisting a patient to use a bedpan the respondent sustained an injury to her back and, as a consequence, was off work for fourteen months. On returning to work she was moved to a gynaecology ward where she described the work as lighter than her previous duties. She did not require to make beds, patients had more mobility and the ward was closed at weekends. In respect of the injury which she sustained in September 1984 the respondent was assessed by an Adjudicating Medical Authority, which found (1) apparent gross weakness of dorsiflexion but no wasting; (2) impaired spinal function; (3) tentative gait; (4) inability to lift or bend and (5) stairs able to be managed only by right foot first and a tendency to trip. On 3 June 1987 her disability was assessed at 7% for life. On 24 June 1997 the respondent, during the course of her work, strained her neck, shoulder and chest while she was lifting a patient from a bath, and thereafter she was off work. The possibility that she was suffering from angina was investigated but she was reassured. She was referred for physiotherapy treatment in respect of her persistent complaints of limitation of movement of her right shoulder. A report from her general practitioner confirmed that she had suffered from a recurrent problem with backache due to the injury sustained in September 1984, that she was able to resume light duties which did not involve lifting, that her backache continued to be a problem and that her incapacity was genuine. A report from the appellants' Physiotherapy Department at Law Hospital dated 24 November 1998 described the respondent's problem at that time as a painful right shoulder.

[8] The respondent gave evidence before the employment tribunal. She stated that in respect of the 1984 incident she was continuing to take pain killers on a daily basis. She could not bend or lean backwards. When she lay on her back she could not sit upright and she required to move onto her side and use a pillow as a wedge or get the support of her husband before she could get up. She required assistance to get in and out of the bath as she could not lift her left leg high enough. While she could lift the right leg higher she had a tendency to lose her balance. When dressing she required assistance, particularly with tights, socks and lace-up shoes, as she was unable to bend down far enough. She was not currently receiving treatment for her right shoulder but it continued to be painful. She was still unable to lift anything with her right hand. She requires to put her right foot forward first when going upstairs. She has moved her bedroom downstairs to avoid climbing the stairs. She also gave evidence of how her physical movements had been adversely affected whilst carrying out a number of domestic duties. These domestic duties are set out under fourteen separate heads in the decision of the employment tribunal. They include (1) inability to lift a kettle to the tap to fill it; (2) inability to fill the bottom tray of the dishwasher; (3) having to sit in a chair when ironing; (4) inability to change sheets as she was unable to bend and lift the mattress to tuck sheets in; (5) inability to lift chairs or trays with her right hand; (6) inability when shopping to reach top or bottom shelves; (7) inability to walk more than 50 metres and (8) inability to pack her shopping bag.

[9] The appellants led evidence from Mrs. Barclay who was at the relevant time the Associate Nursing and Midwifery Director at Law Hospital. She stated that the respondent had discharged her duties for many years despite intermittent back problems and the 7% disability assessment. She believed that the main cause of the respondent's absences from work was angina. In respect of the respondent's shoulder it was Mrs. Barclay's understanding that the respondent hoped it would resolve itself and not stop her return to work. She had not worked directly with the respondent on a day-to-day basis but would have expected to have been informed if the respondent had been unable to perform her duties. She did not know if the respondent's right shoulder complaint affected the use of her right arm.

[10] Before the employment tribunal the respondent's solicitor submitted that she was a disabled person within the meaning of the Act. The solicitor for the appellants emphasised that for 13 years the respondent had performed her duties as a nurse despite the 7% disability assessment, and that fact did not sit comfortably with the evidence which she had given. It was submitted that the respondent was not disabled within the meaning of the Act.

[11] The employment tribunal in general terms found that the respondent was a reliable and credible witness and concluded that she had a physical impairment as a consequence of the incidents in 1984 and 1997. The tribunal had regard to the terms of section 1 of, and Schedule 1 to, the Act as well as guidance regarding matters to be taken into account when determining questions relating to the definition of disability. The last paragraph of the tribunal's decision is in inter alia the following terms:

[12] The employment tribunal's decision that the respondent was disabled in terms of the 1995 Act was appealed by the appellants to the Employment Appeal Tribunal. Before the appeal tribunal the appellant's solicitor submitted that the decision of the employment tribunal had been fundamentally flawed, and was perverse, because it had deliberately left out of account the evidence as to how the respondent performed at work, evidence which was highly relevant to the question as to the extent to which she should be regarded as disabled. On the other hand, Mr. Napier, counsel for the respondent, submitted that the tribunal had applied the correct test in to some extent leaving out of account whether the respondent was capable of performing her work.

[13] The appeal tribunal set out its conclusions in the following paragraphs of its decision:

[14] On 18 February 2000 the appeal tribunal granted the appellants leave to appeal to this court.

[15] Counsel for the appellants criticised the approach which had been adopted by the employment tribunal and the appeal tribunal. The employment tribunal had stated that it may well be the case that the applicant was able to perform nursing duties "but the nature and extent of these duties was not a matter for this Tribunal". That erroneous approach had been followed by the appeal tribunal which had stated that it was entirely appropriate for the tribunal "to leave out of account the fact that she had remained at work until dismissed, apparently performing her duties". Counsel submitted that the employment tribunal should have taken into account the nature of the nursing duties which the respondent had carried out during the period in question. The respondent had given evidence that she had been able to carry out her nursing duties but had difficulties with her domestic life. She had not said that she had difficulty performing normal day-to-day activities when she was at work. Evidence of the normal day-to-day activities which she carried out in the course of her work could be relevant to the issue as to whether or not she was disabled within the meaning of section 1 of the Act. An employer could only lead evidence of an employee's activities when he or she was at work. If there was evidence that in the course of working an employee was required to perform, and was able to perform, normal day-to-day activities (such as, for example, filling a kettle), that evidence could be relevant to the issue of the employee's credibility. Accordingly, both tribunals had been wrong to state that evidence of the applicant's nursing duties should be left out of account. It was accepted that an employee's duties at work could not be equated with normal day-to-day activities but these duties could still be relevant. Evidence of the ability of an applicant to carry out in the course of her employment normal day-to-day activities could have a bearing on her credibility if she gave evidence that she was having difficulty in performing such normal day-to-day activities at home. It could, of course, be that evidence of her activities at work would support her credibility. If there was evidence that at work an applicant was regularly able to lift a very heavy weight with her right hand without difficulty, this evidence could affect the credibility of the applicant if she had given evidence that she was unable to lift a kettle with that hand. Similarly, if an applicant was employed as a home help, evidence as to how she was able to perform her duties, which would include normal day-to-day activities, could have a bearing on the tribunal's assessment of her evidence. Counsel accepted that such evidence would only be relevant to the question of the applicant's credibility. In assessing an applicant's ability to carry out normal day-to-day activities, evidence of her work duties, and how she was able to carry them out, could not be said, as a matter of principle, not to be a matter for the tribunal. Counsel referred to Goodwin v. The Patent Office [1999] IRLR 4, Vicary v. British Telecommunications plc [1999] I.R.L.R. 680 and to the "Guidance on matters to be taken into account in determining questions relating to the definition of disability" issued under section 3 of the Act. The guidance which had been issued did not have the effect of excluding from consideration any evidence relating to the performance of an applicant's duties at work. In the present case the appellants had led evidence that the respondent had been able to carry out her nursing duties and there was no evidence that she had only been able to carry out those duties with great difficulty. The employment tribunal had been wrong to state that the nature and extent of her nursing duties was not a matter for the tribunal and the appeal tribunal had been wrong to state that it was entirely appropriate f

[16] Counsel for the respondent began by submitting that the critical question was whether the decision of the employment tribunal was correct and although he took comfort from certain observations made by the appeal tribunal he did not need to satisfy the court that they were correct. He accepted that normal day-to-day activities can be carried out at work as well as in the home and he expressly conceded that evidence as to how an applicant carried out these activities in the course of her employment could be relevant for the purpose of assessing the applicant's credibility, although it was not relevant for the purpose of defining disability in terms of the Act. Counsel further accepted that evidence of duties carried out at work, other than normal day-to-day activities, could be relevant to the credibility of an applicant who gave evidence that he or she could not carry out certain normal day-to-day activities at home. Counsel quite frankly conceded that, on reflection, he could not support the comment made by the appeal tribunal which had been criticised by counsel for the appellants. So far as the decisions of employment tribunals were concerned, it was not the function of an appeal court to go over each decision with a toothcomb (Hollister v. National Farmers' Union [1979] I.C.R. 542 per Lord Denning at pages 552H-553B). Counsel submitted that on a fair reading of the decision of the employment tribunal, there was no error of law. Even if the employment tribunal had misdirected itself in law in one respect, it did not follow that its decision should not stand (Dobie v. Burns International Security Services (U.K.) Limited [1984] ICR 812 per Sir John Donaldson M.R. at page 818). It was necessary in this case to consider the decision of the employment tribunal in light of the evidence which was led before it. On the assumption that the tribunal had erred in law in stating that the nature and extent of the respondent's nursing duties was "not a matter for this Tribunal", that was not sufficient to justify overturning the decision. The tribunal had accepted the respondent as a reliable and credible witness and had made certain factual findings which were fully justified by the evidence which had been led. There had been no cross-examination of the respondent's evidence as to the normal day-to-day activities which she was unable to carry out or could only carry out with considerable difficulty. The appellants had simply pointed to the fact that she had managed, during the period in question, to carry out her nursing duties, even though she may have had great difficulty in doing so. It was clear that Mrs. Barclay, the witness led by the appellants, had no personal knowledge of the way in which the respondent carried out her duties. So far as the definition of "disability" was concerned the employment tribunal had adopted the correct approach. The tribunal had taken into account the fact that the respondent had been able to perform her nursing duties. However, the mere fact that she had managed to perform those duties could not justify rejection of her evidence about her inability to perform, or difficulty in performing, normal day-to-day activities in the house. The position would have been different if the appellants had led evidence from witnesses who had seen the respondent at work carrying out without any difficulty certain normal day-to-day activities which she had stated that she was unable to carry out, or could only carry out with difficulty, at home, and the tribunal had ignored that evidence. In the circumstances the appeal should be refused.

[17] The employment tribunal found that the respondent has a disability in that she has a physical impairment which has a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. In the Guidance on matters to be taken into account in determining questions relating to the definition of disability, paragraphs C2 and C3 provide inter alia:

Further, in considering whether or not a person is disabled, a tribunal must concentrate on what the applicant cannot do or can only do with difficulty, rather than on the things that he or she can do (Goodwin v. Patent Office, supra, per Morison J. at pages 308-9). The respondent accepted that she had been able to perform her nursing duties but she gave evidence, supported by documentary evidence, of her inability to perform normal day-to-day activities in her home and she was accepted by the tribunal as a credible and reliable witness. The tribunal concentrated on what the respondent could not do or could only do with difficulty. The tribunal noted that she had worked as a staff nurse on constant night shift but observed that the nature and extent of her working duties "was not a matter for this Tribunal". The particular duties performed by an employee in the course of his or her work cannot, of course, be equated with normal day-to-day activities. Each case will depend on its own circumstances but the work performed by an employee may well include some normal day-to-day activities. Thus, if an employee has given evidence that he or she is unable to carry out certain normal day-to-day activities at home, or can only do so with great difficulty, it is, in our opinion, clear that evidence as to his or her ability to carry out those activities while at work without significant difficulty could have a bearing on the credibility of the applicant. Evidence that the applicant could not carry out such activities at work, or could only carry them out with considerable difficulty, could support his or her evidence. Further, in certain circumstances evidence as to particular duties carried out by the applicant at work could equally have a bearing on the tribunal's assessment of his or her credibility and reliability. For example, if an applicant gave evidence of being unable to lift a kettle with his or her right hand at home, evidence that at work the applicant regularly lifted heavy weights with his or her right hand without difficulty could certainly have a bearing on the applicant's credibility. Accordingly, it is not, in our opinion, correct to say as a matter of principle that the duties performed by an applicant at work, and the way in which they are performed, cannot be relevant to the assessment which the tribunal has to make of the applicant's evidence. Whether any such evidence is, in fact, relevant must depend on the circumstances of each case. In the present case, if the employment tribunal, in observing that the nature and extent of the respondent's nursing duties were not a matter for it, intended to imply that evidence of such nursing duties could not be a relevant consideration, then we consider that the tribunal fell into error, although we appreciate that it may be that the tribunal simply made the observation because of the fact that there was really no significant evidence before it of what the respondent's nursing duties were or how well she was able to perform them. The appeal tribunal observed (1) that the ability of an applicant to carry out normal day-to-day activities is not to be judged by reference to whether or not the person is in fact carrying out her prescribed job of work and (2) that it was entirely appropriate for the tribunal to leave out of account the fact that the applicant had remained at work until dismissed, apparently performing her duties. While we can understand, in the context of the circumstances of the present case, why the appeal tribunal made those observations, we consider that it is important to emphasise that they should not be construed as laying down a principle that evidence of the nature of an applicant's duties at work, and how he or she is able to perform those duties, particularly if they include "normal day-to-day activities", cannot be relevant to the issue of the credibility of the applicant. As we have already sai

[18] In the foregoing circumstances we have to consider whether, in light of the observation made by the employment tribunal about the nature and extent of the applicant's nursing duties not being a matter for it, the decision of the tribunal can stand. In Dobie v. Burns International Security Services (U.K.) Limited, supra, Sir John Donaldson M.R. observed (at page 818) as follows:

[19] As we have said, the employment tribunal heard the evidence of the respondent, supported by documentary evidence, and found her to be a credible and reliable witness. It noted that when she returned to work after the accident in September 1984 she moved to a gynaecology ward where her work was lighter than her previous duties and, in particular, she did not require to make beds and the ward closed at weekends. The tribunal narrates the evidence given by Mrs. Barclay, the appellant's only witness, and it appears that she did not speak to the nature or extent of the respondent's nursing duties and, in particular, there is no indication that she was able to speak from her own knowledge about the duties which the respondent did carry out or how well she was able to perform them. The fact that the respondent continued working in the hospital as a staff nurse would not, by itself, permit an inference to be drawn in this case that her evidence about her difficulties at home was not credible or reliable. This is not a case where the tribunal heard evidence from a witness or witnesses who had seen the respondent carrying out her nursing duties and the way in which she carried them out, evidence which tended to cast doubt on the credibility and reliability of the applicant, and decided to ignore it. The appellants did not seek to lead evidence to establish the nature of the nursing duties which the respondent was required to perform. Nor did they seek to lead evidence from witnesses who had seen the respondent at work performing without apparent difficulty nursing duties, including normal day-to-day activities, which was inconsistent with the evidence she had given in relation to how her physical movements were adversely affected while carrying out certain specified domestic activities. On the basis of the evidence led before the employment tribunal, and its assessment of the respondent's credibility, we are satisfied that the decision of the tribunal was plainly right. For these reasons we shall refuse the appeal.