United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K McNERNEY (Legal Officer) Legal Department Royal College of Nursing Raven House 81 Clarendon Road Leeds LS2 9PJ
For the Respondents	SUE ASHTIANY (Solicitor) Messrs Morgan Cole Solicitors Buxton Court 3 West Way Oxford OX2 0SZ


 


JUDGE PETER CLARK: This is an appeal by Miss Gittins against a decision of the Reading Employment Tribunal, promulgated with extended reasons on 9th December 1998 following a two day hearing on 16th and 17th November 1998, dismissing her complaint of disability discrimination against the respondent Trust on the footing that she was not disabled within the meaning of s. 1 of the Disability Discrimination Act 1995.

1. It was common ground that the appellant, who was a qualified State Registered Nurse, applied for nursing posts at Grade D and E at the respondent's John Radcliffe Hospital in December 1997 and that but for her history of bulimia nervosa she would have been successful in one or other application. Further, that bulimia was capable of giving rise to disability within the meaning of s.1 of the Act, she having a mental impairment within the meaning of the Act. It was also accepted by the respondent that she had a past history of bulimia which had lasted for more than 12 months.
2. S. 1 of the Act provides:

"(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."

3. S.2(1) applies that definition to a person who has had a disability lasting more than 12 months.
4. Schedule 1 supplements the provisions of s.1. In particular paragraph 4(1) provides that an impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects (in the present case):

"(g) memory or ability to concentrate, learn or understand; or

(h) perception of the risk of physical danger."

5. S. 3 provides that an Employment Tribunal, in determining whether a person is disabled, shall take into account guidance issued by the Secretary of State.
6. Paragraph C.21 of the Guidance issued by the Secretary of State on 25th July 1996 provides examples where it would and would not be reasonable to regard the effect of an impairment as having a substantial adverse effect. Paragraph C.20 gives examples in relation to impairment of memory or ability to concentrate.
7. "Substantial" means more than minor or trivial. Guide. Paragraph A1.
8. In considering this appeal we have had the advantage of the observations of the EAT (Morison J presiding) on the meaning of disability in Goodwin v The Patent Office [1999] IRLR 4 and Vicary v British Telecommunications PLC [1999] IRLR 680, both cases reported after this Employment Tribunal decision was promulgated.

The Facts

9. The appellant was 30 years old. Her problems with bulimia commenced in February 1995. By July 1995 she was bingeing three to five times a week and on some days she would vomit after eating each meal.
10. In 1996 she used a kitchen cleaner to make herself sick. In August or September 1997 she cut her abdomen and upper arm with nursing scissors. In July 1997 she did the same at the top of her thighs.
11. During this period she was employed by the Hereford NHS Trust and in January 1997 she commenced a course in Accident and Emergency Nursing. She passed two of the course modules related to practical work; the other two academic modules she was unable to complete and she gave up the course. During the relevant period she coped with her work and was promoted.
12. She first had treatment for her condition in September 1996 consisting of private counselling sessions. As a result she realised that she needed further help and saw her general practitioner in March 1997 who referred her to Dr Thomas, a Consultant Psychiatrist. She was prescribed anti-depressants and attended a positive thinking group.
13. On 30th September 1997 she was discharged from further treatment and had suffered no relapse up to the time of the tribunal hearing in November 1998.

The Employment Tribunal decision

14. It was the appellant's case, supported by the opinion of a Consultant Psychiatrist specialising in eating disorders, Dr Pieri, that her condition affected her ability to carry out normal day-to-day activities affecting (a) her ability to concentrate and (b) her perception of the risk of danger and that in each instance the effect was substantial.
15. As to her ability to concentrate the tribunal found that there was no real evidence that her ability to do so was impaired, save in relation to academic modules which she felt unable to complete, she said due to lack of concentration. They observed that there are many occasions when students do not complete courses whilst holding down fulltime jobs. At the most, the tribunal held, she had a tendency to forget to pay her bills and had once forgotten to MOT test her car. Those lapses are common to the majority of the population.
16. As to the perception to the risk of danger the tribunal regarded her self-mutilation as a punishment of herself. There was no evidence that she failed to perceive danger to herself.
17. Generally, they were not impressed by Dr Pieri's evidence. They thought that it was crafted to an extent in an endeavour to bring the appellant within the definition of the Act.

The appeal

18. Mr McNerney attacks the tribunal's findings under both subparagraph (g) and (h) of paragraph 4(1) of Schedule 1. He summarises the errors of law into which he submits the tribunal fell in these propositions:

(1) in holding that to qualify as having a decreased ability to perceive risk the appellant must have actually experienced serious ill health.

(2) in deciding whether the appellant's ability to concentrate had been affected the tribunal has impermissibly weighed aspects where no claim to disability arises, such as her successful work record with her previous employer whilst suffering from bulimia, against those aspects where it was claimed that her condition made a difference, such as her ability to concentrate on her academic course modules.

(3) either the tribunal has applied the wrong test as to what is a substantial effect, that is more than minor or trivial, or they have reached a perverse conclusion that such an effect was not made out.

19. He invited us to view the facts of this case in a series of steps:

(i) the appellant suffered from bulimia.

(ii) she took kitchen cleaner in order to induce vomiting on a regular basis.

(iii) what are the results of that behaviour?

(iv) are the results such that nobody with a reasonable ability to perceive danger would put themselves in the way of such results?

(v) if the results were dangerous to health any person who acts in the way in which the appellant acted must have a reduced ability to perceive the risk of danger. He relied on the evidence given by Dr Pieri as to the inherent risks of her behaviour in regularly inducing vomiting.

20. In response, Ms Ashtiany reminded us that it is not our function to retry the factual questions before the tribunal. In both Goodwin and Vicary the EAT reached its conclusion that the decisions below were perverse on the basis of those tribunal's own findings of fact.
21. She submits that in this appeal we are being invited to make different findngs of fact from those of the tribunal. That is not permissible.
22. She contended that the question for us is not whether a person suffering from bulimia is or is not disabled, but whether on the facts the tribunal is satisfied that the effects of that admitted condition had a substantial adverse impact on this appellant's day-to-day activities. We accept that proposition.
23. As a matter of fact and degree the tribunal were not so satisfied, correctly applying the statutory tests.
24. On the specific errors of law advanced by Mr McNerney she submits:

(1) that on a fair reading the tribunal, in their reasons, were careful to distinguish between actual and perceived danger, accepting the submission made to that effect on behalf of the respondent and summarised at paragraph 16 of their reasons. At paragraph 24 of the reasons the tribunal found that there was no evidence before them that the appellant failed to perceive danger to herself.

(2) as to loss of concentration, particularly in respect of the academic modules in her nursing course, the tribunal was not satisfied that the appellant's failure to complete the course was attributable to the effects of her medical condition. That was a question of fact for the tribunal.

(3) in these circumstances the tribunal was entitled to conclude that the appellant had failed to make out her case that her condition had a substantial effect on her ability to carry out normal day-to-day activities.

Conclusion

25. We entirely endorse the purposive approach to the question of whether or not a person is disabled within the meaning of s.1 of the Act, as indicated by Morison J in Goodwin. However, we must guard against simply taking a different view of the evidence from that of the Employment Tribunal.
26. In the present case we have carefully considered the tribunal's findings of fact against the background of the evidence which they received, particularly from Dr Pieri under cross-examination.
27. We are unable to accept the submissions of Mr McNerney for the reasons advanced by Ms Ashtiany. In these circumstances, being unable to discern any error of law in the tribunal's approach, we must dismiss this appeal.