United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D BROWN (of Counsel) Instructed By: Mr S Blunt Messrs Lawford & Co Solicitors 102-104 Sheen Road Richmond Surrey TW9 1UF
For the Respondents	MR P THORNTON (of Counsel) Instructed By: Miss E Gray Solicitor Group Legal Services British Telecommunications Plc BT Centre 81 Newgate Street London EC1A 7AJ


 


MR JUSTICE MORISON: The issue in this appeal is whether the Tribunal have correctly approached the question whether the Applicant has a disability for the purposes of the Disability Discrimination Act 1995. Under that Act, a person has a disability if he or she has a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day to day activities.

1. The Employment Tribunal found as a fact that the Applicant was unable to prepare vegetables, cut meat or roast potatoes, carry saucepans full of water, manually open jars, tins or packets, carry baskets of washing, read without resting the book on the arm of a chair, do heavy shopping, do any DIY tasks, file her nails, tong her hair, and, shake quilts, groom animals, polish furniture, knit, sew, cut with scissors, hold a briefcase, suitcase or handbag with handheld handles, or carry a chair. It was common ground between the parties that the adverse effects on her ability to carry out normal day to day activities was long term.
2. The Respondent's case, which the Employment Tribunal eventually accepted, was that the Applicant did not suffer from an impairment which had a substantial effect on her ability to carry out her normal day to day activities. Having referred to certain extracts from the guidance which has been issued by the Secretary of State concerning the definition of disability, the Tribunal continued:

"We find that the Applicant does not qualify as having an impairment which has a substantial adverse effect as regards manual dexterity. 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 paragraph 15 of their decision the Tribunal then said:

"As regards the ability to lift, carry or otherwise move every-day objects, it is clear that the inability to carry a pan or kettle of water fall within this category and a kettle of water is referred to as an every-day object in the guidance. We have also found that the Applicant is unable to carry a moderately loaded tray, since it appears that she is unable to carry a tray containing a canteen meal. Although a chair is referred to in the guidance as an every-day object, we do not understand that the ability to carry a chair comes within the category of what we would look upon as normal day-to-day activities. The Applicant's inability to carry a washing basket, a bag of shopping, a suitcase, briefcase or hand-held handbag, are all capable of being modified to prevent or reduce the effects of the impairment on normal day-to-day activities, i.e. the Applicant can rely upon shoulder bags, rather than hand-held bags, and can carry washing in small quantities and shopping in trolleys, unloading it in small quantities."

3. The Employment Tribunal then referred to evidence which was given on behalf of the Respondents by their Regional Medical Officer Dr Macaulay. They regarded Dr Macaulay as an impressive witness. They noted that she had obtained a special qualification in Occupational Health and that she had attended a number of seminars and training courses on the application of the Disability Discrimination Act. The Tribunal said this:

"We understand from Dr Macaulay that driving is not regarded by those doctors who specialise in the operation of the Disability Discrimination Act as a normal day-to-day activity, and that writing letters, reports and taking minutes are not so regarded."

And later:

"Dr Macaulay accepted that the Applicant has a physical long-term impairment. She does not accept that it is substantial on her own observations of the Applicant and it is her opinion that although there are some every-day objects which the Applicant is unable to lift, carry or otherwise move, paragraph 4 of Schedule 1 requires an assessment to be made of a person's overall ability to use his/her upper limbs."

They then say:

"From the evidence before us, we make no finding that the Applicant was impaired in her ability to carry out normal day-to-day activities, by an impairment in her ability to lift, carry or otherwise move every-day objects."

The Tribunal then went on to consider whether the Applicant suffered from a disability but for the fact that measures, including medication, were being taken to treat or correct her condition. They said:

"We have heard and seen no evidence as to the extent to which the Appellant's impairment would be likely to have a substantial adverse effect on her ability to carry out normal day-to-day activities, but for the medical treatment which she is receiving."

And they rejected the Applicant's complaint because she had not satisfied them that but for the medication that she was taking, it was likely that the impairment from which she suffers would have a substantial adverse effect on her ability to carry out normal day-to-day activities.

4. On behalf of the Appellant, Mr Brown submitted that the whole approach of the Employment Tribunal was flawed. The Employment Appeal Tribunal has given guidance as to the approach to the question whether a claimant suffers from a disability in the case of Goodwin v The Patent Office [1999] IRLR 4. The Employment Tribunal cannot be criticised for not following the guidance given in that case as it was decided after their decision in the present case. Under that guidance, the Tribunal should have been concentrating more on the things that the Applicant could not do as opposed to the things that she could do, and should have had proper regard to the context in which the guidance is given.
5. The Tribunal should have directed itself that the word "substantial" is capable of more than one meaning. It is to be construed as meaning more than minor or trivial, see paragraph A(1) of the guidance. Nowhere in the decision does the Tribunal address its mind to the question of what is meant by "substantial". The Tribunal did not look at what the Applicant could not do and then ask itself whether it was necessary to go on and refer in detail to the guidance or whether it was plainly obvious that within the ordinary meaning of the words the Applicant is disabled.
6. Mr Brown argued that the Employment Tribunal had effectively delegated their function of determining what were normal day to day activities and whether the Applicant's ability to perform them had been adversely affected to the witness called on behalf of the Respondents. He pointed out that it was significant that Dr Macaulay was considered to be expert not merely because of her qualifications in occupational medicine, but also because she had attended a number of seminars and training courses on the interpretation or application of the Disability Discrimination Act. In effect, he submitted that the Employment Tribunal were treating Dr Macaulay as an expert witness to guide them as to the interpretation of the provisions of the Act. He submitted that, overall, it was clear that the decision of the Employment Tribunal was perverse.
7. For the Respondents, Mr Thornton of Counsel in a detailed written submission as amplified by his oral arguments, sought to resist each of the points raised by Mr Brown. He submitted that the Employment Tribunal took into account Dr Macaulay's views as they were entitled to do, they took the guidance document into account as they were entitled to do and they also took into account other medical and lay witness evidence and they were entitled to conclude, having regard to the whole of the evidence, that such impairment as there was was not substantial. In the circumstances, it was not possible to submit as Mr Brown was forced to, that the whole decision could be described as perverse. He reminded us of the heavy burden which falls on an Appellant who wishes to advance a perversity argument.
8. It seems to us with great respect to the Employment Tribunal that their decision can be described as perverse. Each of the members of the Employment Appeal Tribunal who read what the Applicant was unable to do, as set out in paragraph 7(3) of the decision, was surprised to see the conclusion reached by the Employment Tribunal. This was a decision which satisfies the 'oh my goodness' test for perversity.
9. There are, as it seems to us, a number of errors of law contained in the decision. In the first place, we agree with Mr Brown that the Employment Tribunal has not considered the interpretation of the word "substantial". It seems to us clear that they must have approached the case on the basis that "substantial" means more than what the word means in this context. Paragraph 6 of annex 1 of the Code of Practice issued by the Secretary of State for Education and Employment on 25 July 1996 under section 53(1)(a) of the Disability Discrimination Act 1995 provides:

"A substantial adverse effect is something which is more than a minor or trivial effect. The requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people."

Section 3(3) of the Act provides:

"A tribunal or court determining, for any purpose of this Act, whether 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."

Subsection 12 provides that "guidance" means guidance issued by the Secretary of State under the section. Guidance has been issued by the Secretary of State under section 3. Paragraph 1 of part 1 indicates that the guidance is primarily designed for courts and tribunals but it is also likely to be of value to other people. It goes on to say:

"In the vast majority of cases there is unlikely to be any doubt whether or not a person has or has had a disability, but this guidance should prove helpful in cases where it is not clear."

10. The guidance, therefore, will only be of assistance in what might be described as marginal cases. We agree with Mr Brown that in this case there was in fact no need for the Employment Tribunal to refer to the guidance once they had properly understood the meaning of the word "substantial". Having concluded that the ability of the Applicant to do the activities specified in paragraph 7(3) of the decision was impaired, the Tribunal inevitably should have concluded that the Applicant was a person suffering from a disability within the meaning of the Act. Instead, the Employment Tribunal appears to have used the guidance in a somewhat literal fashion so as to arrive at the surprising conclusion that the Applicant was not substantially impaired in her ability to carry out normal day-to-day activities.
11. In a nutshell, what the Applicant suffered from was a disability relating to the use of her right arm and hand. She suffered pain when doing repetitive light work, for example typing or cutting vegetables, or when she was doing more physical work on a one off basis, such as shifting a chair at home when sitting down or getting up from a table.
12. In paragraph 13 of their decision the Employment Tribunal assert that a loss of strength cannot be equated to a loss of function. We do not understand what is being said. A loss of strength may well have a substantial adverse effect on the Applicant's manual dexterity. They then refer to the things that she was able to do which in our view is not the right focus of attention. Their conclusion that the Applicant's lack of ability to cut up meat and roast potatoes could not "as an isolated example" make the impairment substantial. That seems to us to show a misunderstanding of the task in hand. It is clear that an ability to prepare vegetables, cut up meat and carry a meal on a tray would all be regarded as examples of normal day-to-day activities. An inability to carry out those functions would, in our view, obviously be regarded as a substantial impairment of an ability to carry out normal day-to-day activities.
13. Furthermore, the Tribunal's conclusion in that paragraph that DIY tasks, filing nails, tonging hair, ironing, shaking quilts, grooming animals, polishing furniture, knitting and sewing and cutting with scissors were not normal day-to-day activities "as set out in the guidance" misunderstands the nature of the guidance given. Paragraph C9 of the guidance makes it plain that the lists of examples which follow "are not exhaustive; they are only meant to be illustrative." It seems to us obvious that making beds, doing housework (polishing furniture), sewing and cutting with scissors would be regarded as normal day-to-day activities as would minor DIY tasks, filing nails, curling hair and ironing. These are all activities which most people do on a frequent or fairly regular basis. Yet the Tribunal has dismissed the Applicant's inability to carry out these functions without pain on the grounds that they are not normal day-to-day activities.
14. In paragraph 15 of their decision the Tribunal deal with the Applicant's inability to carry a pan or a kettle of water or a moderately loaded tray. They accept that she was impaired in her ability to carry out these particular activities but do not indicate on what basis they say this shows she was not substantially impaired because they give no reasons. They do refer to her lack of ability to move a chair but say "we do not understand that the ability to carry a chair comes within the category of what we would look upon as normal day-to-day activities." Yet paragraph C18 of the guidance, when dealing with ability to lift, carry or otherwise move everyday objects identifies as an every-day object items such as a chair or other piece of light furniture. The guidance goes on to say that it would be reasonable to regard as having a substantial adverse effect an inability to pick up objects of moderate weight with one hand or an inability to carry a moderately loaded tray steadily. We do not understand the comment made by the Tribunal that the ability to carry a chair does not fall within the scope of every-day activities. They do not explain how they have arrived at that conclusion, which appears to run counter to the guidance to which they have made extensive reference. As to her inability to carry a washing basket, bag of shopping, a suitcase, briefcase or hand-held handbag, the Tribunal dismisses her complaints in relation to that on the basis that the Applicant could rely upon shoulder bags rather than hand-held bags and carry washing in small quantities and unloading shopping in trolleys in small quantities. Again, with respect, this appears to be a misunderstanding of the task confronting an Employment Tribunal. The fact that a person is able to mitigate the effects of their disability does not mean that they are not disabled within the meaning of the Act. It seems to us obvious that it would be a substantial impairment on a normal day-to-day activity if the Applicant could not use a hand-held bag or carry washing, other than in small quantities, or unload her shopping trolley other than in small quantities.
15. We also agree with Mr Brown of Counsel that the Employment Tribunal has misdirected themselves as to the relevance of the medical evidence which they received from the Respondent's Occupational Health Advisor. The fact that the Medical Advisor had been told on some disability discrimination course or seminar that something was or was not a normal day-to-day activity is not of relevance to the Tribunal's determination. It is not for a doctor to express an opinion as to what is a normal day-to-day activity. That is a matter for them to consider using their basic common sense. Equally, it was not for the expert to tell the Tribunal whether the impairments which had been found proved were or were not substantial. Again that was a matter for the Employment Tribunal to arrive at its own assessment. What of course a medical expert was entitled to do was to put forward her own observations of the Applicant carrying out day-to-day activities and to comment on the ease or otherwise with which she was performing those functions. She obviously also was entitled to give any prognosis that might be relevant and to give an opinion as to the position about the effect of medication.
16. In summary, therefore, in our judgment the Tribunal has erred in law in the following respects:

    1. it has arrived at a conclusion which is perverse.

    2. it has misdirected itself in law as to the way the guidance is to be used.

    3. it has misdirected itself in law as to the meaning of the word "substantial", and

    4. it has misdirected itself in law in the way it dealt with the expert evidence.

17. For the reasons we have given, we are quite satisfied that the decision of the Employment Tribunal is wrong and that in the light of their findings of fact in paragraph 7(3) the only conclusion open to an Employment Tribunal was to conclude that the Applicant suffered from a disability within the meaning of the Act. We accordingly allow the appeal and substitute that finding in its place.
18. Because the Disability Discrimination Legislation has only been in force for a relatively short period of time, we do not consider it appropriate to deal with issues which do not need to be determined for the purposes of an appeal. One of the issues in this case related to the Tribunal's conclusion that the Applicant's problems in holding up a book to read or opening a can, jar or packet could be mitigated by her relying on a chair which to rest the book or on electrical can and jar openers. It was argued by Mr Brown that the Tribunal should have disregarded the use of the automatic can opener because that was an aid of the type referred to in paragraph 6(2) in Schedule 1 to the Act. On the other hand on behalf of the Respondents, it was argued that the words "or other aid" in paragraph 6(2) are referring to aids such as zimmer frames or sticks or wheelchairs and not to household objects. On the basis of the argument presented to us, but without in any way wishing to decide the point for future reference, it seemed to us that the Respondent's contention in this respect was probably correct.
19. Finally we should wish to add for the consideration of the Employment Tribunals in the future that a relatively small proportion of the disabled community are what one might describe as visibly disabled, that is people in wheelchairs or carrying white sticks or other aids. It is important, therefore, that when they are approaching the question as to whether someone suffers from a disability, they should not have in their minds a stereotypical image of a person in a wheelchair or moving around with considerable difficulty. Such persons may well have a physical impairment within the meaning of the Act and are thus to be treated as disabled, but it of course does not follow that other persons who are not in such a condition are inherently less likely to have a physical or mental impairment of a sort which satisfies the terms of the legislation.