United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D WARD (Representative) Portsmouth Citizens Advice Bureau Dugald Drummond Street Portsmouth Hampshire PO1 2BB
For the Respondents	MR M KOLANKA (of Counsel) Instructed by: Ms Jill Shortman Central Personnel Unit Hampshire County Council The Castle Winchester Hampshire SO23 8UJ


 


JUDGE PETER CLARK: The appellant, Miss Foster, was employed by the respondent, Hampshire Fire & Rescue Service from 1972 until her dismissal effective on 19th February 1997.

Following that dismissal she presented an Originating Application to the Industrial Tribunal complaining of unfair dismissal due to discrimination due to disability.

Before the Industrial Tribunal sitting at Southampton on 4th September 1997, a preliminary point was taken as to whether or not she had a disability within the meaning of s. 1 of the Disability Discrimination Act 1995 ["the Act"]. The tribunal found that she did not. Against that decision, promulgated with extended reasons on 23rd September 1997, she now appeals.

The Facts

In the later years of her employment as a Clerical and Administration Assistant the appellant had what the Industrial Tribunal described as a poor attendance record. We see from the summary prepared by the respondents that in 1994 she had 60 days sick absence; in 1995 32 days and in 1996 27 days, with a further six days off prior to her dismissal on 19th February 1997.

After taking medical advice and despite regular reviews and meetings with the appellant, the respondents dismissed her on grounds of incapability. She was not offered ill-health retirement with an immediate pension, She was then aged 41 years.

The records show that the reasons for her absences were varied. The focus in this case was on two medical conditions from which she suffered, asthma and classical migraine.

The tribunal found that two or three times a year the appellant suffered an asthma attack without warning. She was more prone to attacks when stressed or suffering from a cold or other respiratory infection. She was allergic to pollen dust, house dust mites and air pollutants. The symptoms consisted of very tight chest and difficulty in breathing even with the benefit of an inhaler. During attacks she could not walk or breathe properly and could not inhale or exhale very well.

She never suffered an asthma attack at work, although the records shows that she was absent for eight days in October 1994 and on two separate days in 1995 due to asthma.

She avoided smoky atmospheres. It normally took her between 30 minutes and an hour to recover from an asthma attack. She walked to and from work, a distance of up to ¾ of a mile. The walk took about 10 minutes. Occasionally she experienced wheezing.

She climbed two flights of stairs to her office. Sometimes she suffered discomfort climbing the stairs, following which she took between half and one hour to recover. During that time she had difficulty answering the telephone and carrying out her normal duties. In evidence she accepted that he asthma was well controlled.

When suffering a migraine her symptoms consisted of dry throat, severe headache, nausea and diarrhoea. Any slight movement causes discomfort. She retired to a darkened room during attacks. She was highly sensitive to noise on those occasions. She estimated in evidence that she had some eight/nine migraine attacks each year. On occasion she left work due to migraines, although she accepted that few sick absences over the years were recorded as being attributable to migraine.

Disability

S. 1 of the Act provides:

"1 Meaning 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."

S. 3 provides that:

"3 Guidance

(1) The Secretary of State may issue guidance about the matters to be taken into account in determining-

(a) whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities; or

(b) whether such an impairment has a long-term effect.

...

(3) A tribunal or court determining, for any purpose of this Act, whether in an impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance which appears to it to be relevant."

By s. 53:

"53 Codes of practice prepared by the Secretary of State

(1) The Secretary of State may issue codes of practice containing such practical guidance as he considers appropriate with a view to-

(a) eliminating discrimination in the field of employment against disabled persons and persons who have had a disability; or

...

(6) If any provision of a code appears to a tribunal ... to be relevant to any question arising in any proceedings under this Act, it shall be taken into account in determining that question."

Schedule 1 to the Act sets out provisions supplementing s. 1, including provisions relating to the meaning of the expression Normal day-to day activities (paragraph 4); Substantial adverse effects (paragraph 5); and the Effect of medical treatment (paragraph 6).

The Code of Practice issued under s. 53(1)(a) of the Act provides guidance to assist in the elimination of disability discrimination. We shall refer to that guidance later in this judgment.

The Industrial Tribunal Decision

Based on the facts as found the tribunal concluded that the appellant had a physical impairment. Her asthma and migraine impaired her ability to carry out a number of activities. They had a long-term effect. Both conditions had lasted for at least 12 months.

However, the tribunal found that the degree of impairment suffered by the appellant did not have a substantial effect on her normal day-to-day activities.

Accordingly she was not a disabled person within the meaning of the Act.

The Appeal

Mr Ward challenges the tribunal finding that the appellant had failed to show that the impairment relied on had a substantial effect on her normal day-to-day activities. He makes broadly two submissions:

(1) that the Industrial Tribunal failed to apply the statutory provisions and guidance set out in the Code. In particular, they failed to disregard the medical treatment which the appellant was receiving to control her asthma, as required by Schedule 1 paragraph 6(1) of the Act and paragraph A11-13 of the Guidance. They failed to apply the guidance contained in Part 2C of the Code dealing with the appellant's ability to carry out "normal day-to-day activities" in terms of her mobility, continence, ability to lift, carry or otherwise move everyday objects, hearing and memory or ability to concentrate (C4), by reference to the examples given at C14, 15 and 20. Further, they failed to apply the guidance as to the meaning of the term "substantial" adverse effect as defined at A1.

(2) the Industrial Tribunal's overall conclusion that the appellant had failed to make out substantial adverse effect was perverse in the light of their findings of fact, and in particular the frequency of her symptoms and their effects, disregarding the medication which she received.

In response, Mr Kolanko submitted that, as set out in paragraph 12 of their reasons, the tribunal plainly had in mind the relevant guidance, and in particular, the requirement that treatment or corrective measures are to be disregarded. There was no evidence of the extent to which that appellant would suffer an adverse effect on her day-to-day activities in the absence of medication. The tribunal was entitled to find that it was only her mobility which was materially affected. The tribunal had to view the overall picture and reach a conclusion, all other requirements of the definition of disability having been satisfied, as to whether the adverse effects were substantial. They decided, as a matter of fact, that they were not. There is no indication that the tribunal misdirected itself in law; its conclusion cannot be characterised as perverse, in the sense that it was an impermissible option. No error of law is made out.

Conclusion

We accept the submissions of Mr Kolanko. Disability discrimination is a new field of law. It raises issues which do not wholly mirror the previous sex and race discrimination legislation. It will require Industrial Tribunals to decide medical questions, often without the degree of expert medical evidence and opinion to be found in the personal injury field of civil litigation. The guidance provided in the Code by way of examples is of assistance but will rarely provide the definitive answer on the facts of any particular case.

We are satisfied that there is no patent self-misdirection in law contained within the tribunal's reasoning. In determining the critical issue of fact, whether the adverse effect of the appellant's impairment was substantial, the tribunal took into account the appellant's own evidence, which was accepted, the factual medical report of the appellant's general practitioner, Dr Thornton describing her condition and the medication prescribed and the opinion of the respondents' occupational health service physician, Dr Smith, and reached a conclusion which we cannot say is perverse.

In these circumstances we must dismiss this appeal.