United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D O'DEMPSEY (of Counsel) Messrs Lawford & Co Solicitors 102-104 Sheen Road Richmond Surrey TW9 1UF


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Mrs Vicary wishes to make against a decision of Industrial Tribunal held at Ashford, Kent on 1 September 1998. She had brought a complaint against her employers, British Telecommunications Plc alleging that she had been discriminated against by them under the Disability Discrimination Act 1995.

Having heard the evidence in the case, the Industrial Tribunal produced a decision which was sent to the parties on 7 September 1998 and it is against that decision in writing that this appeal has been brought.

The essential findings are that the Applicant was employed by British Telecom as a clerical officer and has been so employed since August 1988; that she has, what I will call for short hand purposes, an upper arm condition which might more accurately be described as a work related upper limb disorder, and the first issue which the Industrial Tribunal felt they had to deal with was whether she was a person suffering from a disability with the meaning of the 1995 Act.

They recorded at paragraph 13 that she does not qualify as having an impairment which has a substantial adverse effect as regard manual dexterity. They say this:

"......She is able to use both her hands and, in our view, a loss of strength cannot be equated to a loss of function. The Applicant can handle a knife and fork at the same time, and she can press the buttons on keyboards or keypads, albeit more slowly than she was able to formerly. We are not satisfied that her ability to press buttons on keyboards or key pads only enables her to do so "much more slowly" than is normal for most people, and there was no evidence from which we could make such a finding. The Applicant's lack of ability to cut up meat and roast potatoes cannot, in our view, as an isolated example make the impairment substantial. As regards the Applicant's lack of ability to hold up a book to read it, or to open a can, jar or packet, we find that she can reasonably be expected to modify her behaviour to prevent or reduce the effects of the impairment by resting the book on a chair and by relying on electrical can and jar openers. We do not regard the doing of DIY tasks, filing nails, tonging hair, ironing, shaking quilts, grooming animals, polishing furniture, knitting and sewing and cutting with scissors as normal day-to-day activities as set out in the guidance, since it cannot be said that these activities are carried out by most people on a daily or frequent and fairly regular basis."

In the light of their findings and in the light of the evidence which was produced for them by Dr Macaulay, the Tribunal arrived at the conclusion to which I have referred.

Mr O'Dempsey, on the Appellant's behalf, submits that there are effectively five points which are suitable for consideration at a full hearing, when the Employment Appeal Tribunal will have the benefit in this difficult field of hearing argument on both sides.

Firstly, the definition of disability and the Tribunal's approach to that question. Secondly, their approach to the question of the word substantial. Thirdly, the Tribunal's approach to the codes and guidance, the suggestion being that they have sought to see if what Mrs Vicary was complaining of is mentioned in the guidance and to make findings against her if she was complaining of matters which were not mentioned in the guidance. Fourthly, what is meant by the word "measures" in paragraph 6 of Schedule 1 and in particular, the words "or other aid". The argument in a nutshell being that where the Tribunal refer to the Applicant being able to rest a book on a chair or rely on electrical can and jar openers, they may have misdirected themselves in relation to paragraph 6. Fifthly, the Tribunal's approach to the medical evidence which was given in this case. To what extent has the Tribunal in this case exercised its own discretion and judgment, or has rather delegated issues for determination by the medical expert? This issue raises general questions, which can usefully be considered at the full hearing, as to the role of a professional witness of this sort in the Tribunal's deliberations.

I wish to emphasise that by giving this judgement the Employment Appeal Tribunal is expressing no view, one way or the other, as to the ultimate outcome of this appeal.

This is a case where I think the directions should indicate that the President should deal with this appeal when it comes on for hearing, so it should be marked category P. I think it should be listed for a day. I do not consider that notes of evidence are required, but of course, if in due time it is considered that they are necessary, having regard to the way that the issues have been defined, an application can be made, but by saying that I want to make it plain that I think it most unlikely that any such application would meet with the Tribunal's approval. This is a case which can be approached simply on the basis of the decision as it stands, since this is to some extent an enquiry into the way that the whole question has been approached by the Industrial Tribunal.