United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	John Cavanagh, (of Counsel) Messrs Hodge Jones & Allen Solicitors Tyman House 31-39 Camden Road London NW1 9LR
For the Respondent


 


JUDGE COLLINS:

1. This is the preliminary hearing of an appeal against the decision of an employment tribunal sitting at London North whose extended reasons were promulgated on 17 August 1999. The hearing before the tribunal was itself a preliminary hearing on the question of whether or not the appellant had a disability within the meaning of the Disability Discrimination Act 1995.

2. The appellant is now 36 years old. Between 18 February 1991 and 16 September 1998, he was a facilities engineer employed at the respondents' music studio, earning some £25,000 a year. On 2 September 1994 he sustained a shoulder injury at work and was off work for a long time, between October 1996 and April 1997 and then from July 1997 until September 1998. In July 1998 there was a meeting to discuss his future. What he really wanted to be was a mastering engineer and the respondents had doubts about his suitability. On 3 August 1998, he received a letter dismissing him with effect from 16 September 1998. He appealed against that decision on 24 September and so far as we know, although the position may have changed, the appeal procedure has not been finally resolved because his suitability for the job of mastering engineer is still under consideration. It is not material to our decision to go into that today.

3. The appellant presented his claim to the employment tribunal on 11 December 1998, claiming first, that he was unfairly dismissed and second, that he was unlawfully discriminated against on account of his disability. At the preliminary hearing the tribunal heard evidence, which they accepted, from Dr Phelan who was called on behalf of the employers. Suffice it to say for the purposes of this judgment that Dr Phelan could discover no organic basis for the symptoms of pain and difficulty of which the appellant was complaining. However, he believed that the appellant had given a fair and true history of symptoms and he described him as suffering from:

"Psychological turmoil through his musculo skeletal system."

4. And it is clear that Dr Phelan, who described himself as a Consultant in Psychosomatic Medicine, took the view that the appellant's pain was perfectly genuine whether it had an organic basis or not because it proceeded from a genuine psychosomatic condition.

5. The tribunal decided that the appellant had no disability within the meaning of the act because first, in the absence of any organic basis for his condition, he was not suffering from a physical impairment within the meaning of the act and second, he was not suffering from a mental impairment within the meaning of the act because they had no evidence that what Dr Phelan described was a clinically well recognised illness, which it had to be in order to be a disability within the meaning of the act.

6. There are three grounds of appeal against this decision. First, that the tribunal was wrong in concluding that there was no clinically well-recognised illness because there was no evidence on which they could form that view. It seems to us that this is a reasonably arguable point. If the tribunal were minded to decide against the appellant on that ground they might have taken up the point with Dr Phelan who seemed to have no difficulty in recognising such an illness. It is not apparent that either the tribunal or the employers raised the issue with him.

7. Second, it is said that the tribunal should have taken their own point as to whether or nor what Dr Phelan was describing came within the World Health Organisation's International Classification of Diseases. We think that may be a harsh criticism of a tribunal where the appellant was represented by a solicitor and where there was a highly qualified doctor giving evidence, but since we are proposing that the appeal should go forward we are not going to exclude that as one of the grounds.

8. The final matter is whether or not the tribunal should independently have considered if there was a past disability under S.2. We have reservations about that because it may be that the preliminary issue was directed solely to the question of whether or not there was a current disability. But we have not seen any directions letter or order showing how the preliminary issue was framed and therefore it seems to us the matter ought to be investigated at a full hearing