United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	John Falkenstein (of Counsel) Instructed by: Messrs Wallers Solicitors Pearl Assurance House 7 New Bridge Street Newcastle upon Tyne NE1 8BJ
For the Respondent


 


JUDGE COLLINS:

1. This is the preliminary hearing of an appeal against the decision of an employment tribunal sitting at Newcastle, their extended reasons having been promulgated on 9 November 1999. The hearing before the tribunal was itself the hearing of a preliminary issue as to whether or not the respondent had a disability within the meaning of the Disability Discrimination Act 1995. The tribunal concluded that he did have such a disability. The respondent is 54 years old and an accountant. He was employed by the appellants from 1 December 1986 until 12 May 1998. In February 1997 he was diagnosed as diabetic. He is not insulin dependent as yet, and has been hypoglycaemic on a number of occasions. Although he suffers from a number of problems he continues to pilot gliders.
2. The tribunal had in mind Schedule 1 to the 1995 Act and in particular paragraphs 6 & 8. Paragraph 6 imposes the obligation to discount the beneficial effect of medication when deciding whether or not a person's impairment has a substantial adverse effect. Paragraph 8 requires a tribunal to take into account the effect of a progressive condition where a person has an impairment which is not yet substantial. They concluded that there was some effect on the Respondent's continence and mobility which was not at that stage substantial. But they concluded on the evidence that it would be as the condition progressed.
3. There are two points taken into this appeal. The first is that the tribunal concluded that some of the symptoms from which Mr Briton was suffering and which led them to conclude that there was some impairment of his functions were produced not by the diabetes itself, but by the steps which were taken to combat the diabetes. Mr Falkenstein argues that the Act does not entitle a tribunal to look outside the illness itself for the purpose of deciding whether or not there is impairment and that the steps taken to combat the illness should be disregarded. We express no view about the soundness of this argument save to say that it is one that should be dealt with in our judgment by a full hearing before the tribunal and should not be disposed of at a preliminary hearing. So far as Mr Falkenstein is aware, there is no authority as yet on this question.
4. The subsidiary point is that the tribunal made insufficient or incorrect findings of fact about the issues of continence and mobility. So far as the issue of continence is concerned in paragraph 8 of their reasons, the tribunal concluded that nocturia was a probably a matter of continence because of an abnormal frequency of passing urine. They also concluded that the tiredness and lethargy suffered by Mr Briton was a matter which affected his mobility. They concluded that in neither of these respects was the impairment substantial. They turned to consider paragraph 8 of Schedule 1 and in paragraph 9 of their reasons concluded that: -

" In due course his progressive condition would produce lethargy which would undoubtedly constitute a substantial impairment of his mobility."

But they do not go on to consider whether or not the progress of the condition would affect his continence to the point where the impairment was substantial. It seems to us that there is a reasonably arguable point in relation to that and that it would be rather artificial and limiting to deny Mr Falkenstein the opportunity of arguing any point he wanted to in relation to the mobility aspect as well. So we shall allow this appeal to proceed to a full hearing.