United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MARY STACEY (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


LORD JOHNSTON: This is a preliminary hearing in the appeal by the appellant employee against the decision of the Employment Tribunal finding that he was not a disabled person within the meaning of the Disability Discrimination Act 1995 and furthermore had not been unfairly dismissed from his employment with the respondents.

1. At the outset Miss Stacey who appeared for the appellant under the ELAAS scheme directed us to the issue of disablement as focused in the findings of the tribunal and indicated that she was not at this stage making any attack on the findings of unfair dismissal so long that it was only looked at as isolated or independent issue. However, she asked us if we were to allow this case to go to a full hearing to reserve the appellant's position in relation to that latter matter because if he was found to be disabled in terms of the legislation contrary to the findings of the tribunal, an issue of unfair dismissal would raise separate questions.
2. The background to the matter is that the appellant is admittedly an asthmatic and eventually his employment was terminated, it appears in relation to the amount sick leave that he had been forced to take. The conclusions, however, of the tribunal in relation to the question of disablement are to found in paragraph 5 of their decision, the crucial pieces of which are:

"… The Tribunal therefore considered the evidence up to that point and concluded that they had not heard sufficient evidence on the Applicant's difficulties in respect of his day-to-day activities to be able to say that he had shown on the balance of probabilities that he was a disabled person within the meaning of the Act. Whilst he clearly does have a medical condition and that does impact on his daily life, the examples he was able to give us of the way in which he is impeded by his asthmatic complaint were not such as to be a substantial adverse effect preventing him from carrying out those activities which most people to every day. The Applicant can walk a mile, although with some difficulty and that is the only example which he gave us of those which most persons do regularly. We do not regard do it yourself activities and car maintenance as examples of normal day-to-day activities. They are activities which are normal and they are activities which are done by many people regularly but they are not done by most people or carried out by most people on a daily or frequent and fairly regular basis."

3. The attack that is proposed to be launched on that conclusion, which may on one view be regarded as a matter of fact, is essentially based on paragraph 2(15) of the tribunal's findings of fact where it is said:

"(15) The Applicant has a 20% assessment from the DSS relating to his ill health. He gave evidence to us and we accept this evidence that he does have difficulty breathing. The examples he gave of the daily problems he encountered, related not being able to run for say the length of the Tribunal corridor without becoming breathless, not being able to take the dog for a walk for longer than a mile without becoming breathless, not being able to do do-it-yourself activities like sawing wood off the bottom of a door and not being able to practise car maintenance. When asked specifically by the Chairman what his difficulties would be if he did not take his medication, the examples he gave were similar to the ones outlined above."

4. Miss Stacey accepted that the substantial part of that latter paragraph is reflected in the findings and conclusions in the main paragraph 5, but she pointed out with considerable force that the one element missing from the equation that is being weighed by the tribunal in paragraph 5 is the first and highly relevant statement that "the Applicant has a 20% assessment from the DSS relating to his ill health". She submitted whatever else may be in conflict in the evidence, this was a very material matter which by leaving it out of account she effectively said raised the question of whether this was a perverse decision, against the well known consideration of what that word means, but which certainly includes the failure on the part of a tribunal to take into account a matter they should have taken into account or to leave out of account a matter which they should not have left out of account.
5. Without any hesitation we are satisfied that this issue alone raises a question which requires to be fully investigated as a matter of law before this tribunal at a full hearing. We offer no view as to whether in fact the finding of perversity is justified nor indeed, generally, what the outcome of the case might be. All we have to decide at this stage is that the case is suitable to advance to a full hearing and we are in no doubt that it is.
6. We should record that Miss Stacey told us that in the event of a full hearing being undertaken the likelihood was the appellant would be seeking a rehearing by a new tribunal, but she did not what to leave out of account the possibility of the matter being remitted back for further consideration by this tribunal. We simply record those facts without making any further comment.
7. In these circumstances and for these reasons, this tribunal will order this case to proceed to a full hearing, and we repeat that the appellant's position on the issue of unfair dismissal is reserved for consideration if appropriate at that hearing.