United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B LANGMUIR (Representative)


 


JUDGE PETER CLARK: This is an appeal by the Applicant before the Brighton Employment Tribunal, Mr McKenzie, sitting on 16 September 1998, against that Tribunal's decision to dismiss his complaint of Disability Discrimination against his former employer, the Respondent, East Sussex Country Council. A further finding that the Appellant had not completed two years continuous service for the purpose of qualifying for unfair dismissal protection is not challenged in this appeal. The Tribunal's decision with Extended Reasons was promulgated on 5 October 1998.

The Appellant was employed by the Respondent as a care assistant, between 9 July 1990 and 21 December 1995 and again between 17 March 1997 and 26 June 1998 as a temporary care assistant. During the intervening period he had occasionally worked for the Respondent under the bank system.

At paragraph 3 of their Extended Reasons the Tribunal set out the evidence which the Appellant gave as to his own medical condition. It is not clear whether the Tribunal accepted that evidence, but we shall assume that it did.

The sole question before the Tribunal under the Act was whether the Appellant was a disabled person within the meaning of section 1. In order to fall within that definition four conditions must be fulfilled;

(1) Does the Applicant have an impairment which is either mental or physical?

(2) Does the impairment affect the Applicant's ability to carry out normal day to day activities in one of the respects set out in paragraph 4(1) of Schedule 1 to the Act?

(3) Is the adverse effect substantial?

(4) Is the adverse effect long-term?

We shall refer to that as the section 1 checklist.

The Tribunal appears to have accepted that the Appellant had a physical impairment, but found that the remaining three conditions were not met. Accordingly they concluded that the Appellant was not a disabled person.

Against that decision this appeal is brought and having considered the matter and the submissions made by Mr Langmuir on his behalf, we have concluded that the appeal should proceed to a full appeal hearing for the following reasons:

(1) the case was decided below before the helpful guidance provided by Morison P, in Goodwin v The Patent Office [1999] IRLR 4. That judgment observes that it is for Employment Tribunals to adopt a purposive approach to construction of the statutory language in the Act, by reference where necessary to the guidance issued by the Secretary of State and the Code of Practice. Mr Langmuir points out that no reference is made by this Tribunal to either the guidance or the code in their reasons.

(2) The Appellant is entitled to know why he lost on the issue of disability. Arguably it is unclear from the Tribunal's concluding paragraph in their reasons, what led them to find that he had failed on three out of the four requirements in the section 1 checklist.

(3) Prior to the Employment Tribunal hearing, no directions hearing having been convened as recommended by the President in Goodwin, the Appellant's representative wrote on 2 September 1998, applying for an order for discovery of documents including "the health report to Occupational Health". The Respondents did not disclose the general practitioner's report to the County Medical Adviser, Dr McKee on the grounds apparently that they were not given the Appellant's written consent to the release of the report on him from his own GP. Indeed we see from the reasons that a copy was not put before the Employment Tribunal by the Respondent, although the Respondent relied on a report from Dr. McKee which in turn referred to the General Practitioner's report. The General Practitioner's report was in due course disclosed to the Appellant by the Respondent's solicitor under cover of a letter dated 22 October 1998. Having read the General Practitioner's report, which is dated 28 May 1998 from Dr Matthias, we think it is arguable that that report is not accurately summarised in Dr McKee's report which was before the Employment Tribunal and was prepared after these proceedings were commenced, and on which the Tribunal relied in reaching their conclusion.

We regard the failure by the Respondent to disclose that report or to put it in evidence as arguably highly unsatisfactory. We have permitted the Appellant to adduce it in evidence before this Tribunal in the particular circumstances of this case.

Further, Mr Langmuir challenges the Tribunal's finding that the Appellant confirmed in evidence that his condition was "self-remitting", as Dr McKee described the General Practitioner's diagnosis. The Chairman in these circumstances is asked to provide his notes of the Appellant's evidence on that particular point. The significance of the point is that the Tribunal appear to have overlooked the need to consider the adverse effects of the Appellant's condition, but for the medication which he received; see paragraph 6 of Schedule 1 to the Act, when considering whether if he suffered adverse effects, they were substantial in the sense of being more than trivial or minor.

(4) The absence of reasoning arguably also gives rise to questions as to how the Tribunal below interpreted questions (2) and (4) in the section 1 checklist.

For all these reasons we shall direct that the case be listed for a full hearing. That hearing to be timed for 3 hours. I shall reserve the case to myself. Skeleton arguments will be exchanged between the parties not less than 14 days before the date fixed for the full appeal hearing, copies to be lodged at the same time with this Tribunal. Save for the request for Chairman's comments to which we have referred, there are no further directions.