United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Ms Melanie Tether, (of Counsel) Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA


 


JUDGE COLLINS:

1. This is the preliminary hearing of an appeal from the decision of an employment tribunal sitting at Nottingham whose reserved extended reasons were promulgated on 25 October 1999. The hearing before the tribunal was of a preliminary issue as to whether or not the appellant had a disability for the purposes of s.1 Disability Discrimination Act 1995. The tribunal determined that he had no such disability.
2. The tribunal had written a letter to the parties on 24 August 1999 stating that the chairman at a preliminary hearing would determine that question. Miss Tether argued that the tribunal was in error in failing to consider whether the appellant had a past disability under s.2 of the act. But is clear from what I have said that the tribunal was not seized of the question as to whether there was a s.2 past disability and never made a decision on it. Accordingly we are of the view that in so far as the appeal relates to s.2 it is misconceived.
3. The basic history is that the appellant was a trackman employed by the respondents who succeeded to British Rail's track maintenance responsibilities in December 1992. On 23 October 1995 he sustained an accident at work which involved a compression injury to his spine. By 28 October 1997 there was evidence that he was fit for sedentary or semi sedentary work. But when he sought to return to work in October 1998 he was refused the right to do so on the grounds of his condition. He made an application to the tribunal that he was discriminated against on disability grounds. First in relation to refusing him the right to go back to work and second on the ground that no reasonable adjustments had been made under s.6 of the act. In their Notice of Appearance, the respondents alleged that the appellant was not disabled and that there was no discrimination against him.
4. The medical evidence called on behalf of the respondents was accepted in its entirety and the tribunal's decision about it is set out in paragraph 11 of its reasons. They accepted that the appellant had mild degenerative change in his spine which would not account for the symptoms he claimed. Those symptoms were set out in paragraph 3 of their reasons and there can be no doubt that if they were genuine and proceeded from a physical condition and were properly described as a physical impairment the appellant would have been a disabled person within the meaning of s.1. It is clear that the respondents dealt with the case by attempting to convince the tribunal that the appellant was simply not genuine and that he was either a deliberate malingerer or somebody suffering from 'functional overlay', having a psychological cause for his symptoms. They sought to support their case by producing a video of the appellant taken the day before the hearing which appeared to show him undertaking a number of day-to-day activities with apparent ease in a manner which was inconsistent with the symptoms which he claimed to be suffering from.
5. The tribunal set out in their reasons the doubts which they had about the genuineness of the appellant's symptoms and the reasons for those doubts. But it does seem that in the last analysis the tribunal failed to come to any conclusion as to whether the symptoms were genuine or not. The reason why they managed to avoid making a finding of fact was that they disposed of the case against him on another ground. Since they accepted the evidence that there was no organic cause for the symptoms asserted by the appellant, he could not be suffering from a physical impairment within the meaning of the act. They took the view that if he had the symptoms with no organic cause, all he could have had was mental impairment. Because there was no evidence that he was suffering from a clinically well-recognised mental illness (see Schedule 1 paragraph 1(1)) he would have to fail on that ground as well.
6. The argument put forward by Miss Tether is that the act is designed to prevent discrimination against persons with disability. If the appellant had pain and restriction of movement of the kind that he complained of she says he has a physical impairment, whatever the cause. She draws our attention to paragraph 11 of the Code of Guidance issued under s.3 which suggests that it is not necessary to consider the cause of the impairment, although the example given is somewhat different.
7. As Mr Dawson pointed out during the course of the argument, if Miss Tether is right it puts employers in a very difficult situation. An employer faced with an employee who claims symptoms of this kind would get medical evidence from a consultant and might get a report saying the consultant can find no organic cause for the symptoms which are reported by the employee. The employer would then have to decide whether simply to accept the employee's report of the symptoms or take some other course, relying on s.5(3) as a defence. Although it produces a very unsatisfactory result we cannot conclude that Miss Tether's case is not reasonably arguable. We shall allow the case to proceed on that ground.
8. Miss Tether has suggested to us in addition that the tribunal was wrong in that it did not make clear findings about the effect on the appellant's activities in terms of Schedule 1 paragraph 4. We agree that it would have been better had the tribunal expressly mentioned the schedule and the list of functions set out but we think it is clear from reading the judgment as a whole that they must have accepted that if the appellant's reported symptoms were genuine he must have been affected in his day-to-day activities of mobility and lifting. We do not think there is anything of any substance in that point.
9. I have mentioned the video recording. This was sprung on the appellant on the day of the hearing. He had a friend, without any legal knowledge representing him and counsel represented the respondents. We are told that all the evidence was given, or at least the appellant's evidence was given, and he had been cross examined before the video was shown later that afternoon. He said from his place in the tribunal that yesterday had been a good day, but he did not ask for an adjournment nor did the tribunal invite him to consider asking for one. In view of the fact that we have decided that this case should proceed to a full hearing on the principal ground which we have identified, we think that the full hearing ought also to have an opportunity to consider whether the way in which the tribunal handled the video evidence amounted to a breach of natural justice. So, on the two grounds, which I have identified, we will allow this appeal to proceed. We mentioned during the course of the argument that we thought that the principal ground was not as articulated as clearly as it might have been in the Notice of Appeal. We shall give permission for the Notice of Appeal to be amended by 24 March 2000.