United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR RECORDER UNDERHILL QC

1. This is the preliminary hearing of an appeal from the decision of an Employment Tribunal sitting at London Central dismissing the Appellant's claim of disability discrimination.
2. On 2 August 1999 the Appellant was employed by the Respondents as a Station Assistant. His employment was probationary. He was dismissed on 26 May 2000. The Respondents gave the reason for his dismissal as poor attendance. The Appellant had been absent on a number of occasions, which he said was on account of illness.
3. By amended grounds the Appellant claimed that his dismissal constituted unlawful discrimination contrary to the Disability Discrimination Act 1995. He claimed that the reason for his poor attendance record was that he was suffering from coeliac disease which is an inability properly to digest gluten.
4. On 15 January 2001 an Employment Tribunal heard as a preliminary issue the question whether the Appellant suffered from a disability within the meaning of the Act. It held that he had not proved that he did and accordingly dismissed his claim. The Tribunal's reasoning, set out in paragraph 9 of the Reasons, was that there was no sufficient evidence of the effect which the disease had on the Appellant's condition. Specifically, it held that there was no sufficient evidence that coeliac disease would have a substantial adverse effect on his ability to carry out normal day-to-day activities as defined in paragraph 4(1) of Schedule 1 of the Act namely that it would substantially affect his "mobility, manual dexterity, physical coordination, continence, ability to lift, carry or otherwise everyday objects, speech hearing or eyesight, memory or ability to concentrate, learn or understand, perception of the risk of physical danger".
5. Although the Appellant apparently put before the Tribunal (as he has before us) a considerable body of material about the coeliac disease in general, consisting so far as we can see entirely of print-outs from internet sites, there was almost no evidence about the impact of the condition on him as an individual. There was apparently no more than a single letter from his general practitioner, which was in very general terms. The Tribunal carefully considered the material before it. What it said in paragraph 9(ii) is as follows:

"The evidence as to what would happen if the Applicant did not avoid wheat is relatively sketchy. The GP says that he may suffer intestinal pain and long term health damage. The Applicant has failed to show that his mobility, manual dexterity, physical coordination, speech, hearing or eyesight or perception of the risk of danger would be affected. His contention that memory or ability to concentrate, learn or understand would be affected is not made out and contradicted by his evidence that he has suffered such ill-affects even though he has been avoiding wheat. We are not persuaded that the Applicant's ability to lift or carry everyday objects either has been affected or would be affected but for the avoidance of wheat. There has been a marked absence of any evidence about this in terms of his current state; and there is no clear evidence that it would result from the adoption of a diet which included wheat. As to continence, the evidence is that the Applicant would suffer some diarrhoea. He gave one example in evidence. He was able to give no example of any specific loss of control and we have no evidence that he would suffer any of the examples of loss of control of either bowels or bladder which are referred to in paragraph C17 of the Guidance relating to the definition of disability."

At (iii) the Tribunal continued:

"In this context "substantial" means something which is more than minor or trivial. We have been unable to conclude that there would be a substantial adverse effect on the Applicant's ability to carry to out the defined normal day-to-day activities."

The Tribunal then made some further points arising out of the internet materials, but it concluded that it would have expected:

"some assistance from the doctors as to the likely long term effects upon the Applicant in this regard. Given that he is sought wholly to adduce the evidence to which we referred we have found ourselves unable to agree with his submission that he is disabled within the meaning of the Act. In our view, the evidence is lacking, as we have indicated above."

6. In essence, therefore, what the Tribunal was saying was that although the general materials with which the Applicant supplied it indicated that in some circumstances coeliac disease might cause disability it was not satisfied that it did so in his case (or would do so if he did not maintain a gluten-free diet). That was a factual finding based on an assessment of the material before them. It seems to us it was a finding entirely within the Tribunal's competence and gives rise to no issue of law.
7. When we raised this point with the Appellant he said that he now had further material, and he showed us a letter from a consultant at the West Middlesex University Hospital dated 30 July 2001. There are of course difficulties about admitting this material in any event, since it was not before the Tribunal: there is no clear reason why a similar letter could not have been obtained earlier. But in any event, having looked at the letter, it seems to us that there is nothing in it which would lead us to any different conclusion from that reached by the Tribunal. The Appellant also told us that he could get a further letter from his GP in Scotland, but he gave no satisfactory explanation as to why he had not obtained proper medical evidence about his condition either prior to the hearing before the Tribunal or indeed in the interval between the receiving of the decision of the Tribunal and this appeal. It is clear from paragraphs 2 and 3 of the Tribunal's Reasons that the Applicant had been in default of orders for further information even before the matter came before the Tribunal on 15 January.
8. In these circumstances we can see no error of law and we dismiss the appeal. It is fair that we should just add this. It is clear from the Tribunal's Reasons that it was not seeking to make any definitive ruling on the effect of coeliac disease generally or that a sufferer from coeliac disease could never bring himself within the definition of disability under the Act. The Tribunal was doing no more than to decide that the Appellant had not put any material before it which satisfied that he as an individual suffered any disability as a result of the disease.