United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C BREEN (of Counsel) Davies Wallis Foyster 5 Castle Street Liverpool L2 4XE
For the Respondent	MS S MOOR (of Counsel) Pattinson & Brewer Transport House Victoria Street Bristol BS1 6AY


 


HIS HONOUR JUDGE PETER CLARK

1. We have before us an appeal by the Respondent below, the Department of Social Security and a cross-appeal by the Applicant Mr Dunford against a decision of an Employment Tribunal sitting at Liverpool under the Chairmanship of Mr S Christie on 15 December 1999, promulgated with what are described as Extended Reasons on 21 December 1999, that the Applicant was disabled within the meaning of Section 1 of the Disability Discrimination Act 1995.
2. We begin by setting out those reasons in full:

"1 These reasons are given in extended form.

2 This was a preliminary hearing to decide whether the applicant is disabled within the meaning of the Disability Discrimination Act 1995.

3 The applicant was represented by Mr R Williams (PSC) and the respondent by Mr Bramley of Messrs Davis Wallis Foyster, Solicitors, Liverpool.

4 Having considered the representations made on behalf of the parties, a report from Dr N J Beeching of the University Hospital Aintree, Liverpool, the definition of disability contained in Section 1 of the Act, the Code of Practise: Disability discrimination (1996) and the Guidance on matters to be taken into account in determining questions relating to the definition of disability, the Tribunal finds as a fact that:

(a) the applicant has a physical or mental impairment

(b) the impairment has adverse effects which are substantial

(c) the substantial effects are long term

(d) the long term substantial effects are adverse effects on normal day to day activities.

The applicant suffers from a recognised disease which can result in total debilitation and may flare up again at any time albeit in a mild form.

5 The unanimous conclusion of the Tribunal is that the applicant is disabled within the meaning of the Act."

We say at once that in our Judgment those reasons are inadequate to tell the parties why they have won or lost or to allow this Appeal Tribunal to determine whether or not the Tribunal below has fallen into error – Meek v City of Birmingham District Council [1987] IRLR 250. It is simply not enough to recite the ingredients of Section 1 of the Act and to state that the Tribunal finds as a fact that the Appellant has made out his case under Section 1.

3. The position is not improved by the fact that no oral evidence was given below. In particular, the Applicant gave no evidence as to the effect which his condition, described in the agreed medical report of Dr Beeching dated 15 December 1999, under whose care the Applicant had been since August 1995, as Pyrexia (fever) of unknown origin (PUO), had on his day-to-day activities; nor is that feature specifically addressed in Dr Beeching's report. There is a further difficulty which arises on the cross-appeal. Miss Moor argues that in his Originating Application the Appellant raised an alternative argument that he was disabled with the meaning of Section 2 of the Act, that is, that he had had an impairment which had ceased to have a substantial adverse effect on his ability to carry out normal day-to-day activities, but which effect was likely to recur. Schedule 1 paragraph 2(2) of the Act. The Tribunal does not address that alternative argument at all in their reasons. Mr Breen contends, on instructions, that the Section 2 argument was not advanced below by the Applicant's trade union representative. Is so, then we ought not to consider it on appeal – Mensah v East Hertfordshire NHS Trustu [1998) IRLR 531.
4. All of this leads us inexorably to one conclusion; that this Tribunal decision cannot stand. The appeal is allowed and the decision set aside. We make no separate order on the cross-appeal. We direct that the issue of disability be remitted to a fresh Tribunal for re-hearing. However, we accept the parties joint submission before us that this question, given the passage of time, is not now suitable for a Preliminary Hearing. The whole of the case, both unfair dismissal and disability discrimination, should be heard together. It will then be for the parties to deploy all necessary evidence and argument to deal, among other things, with the question, was the Applicant disabled within the meaning of the 1995 Act?