United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Daniel Oudkerk (of Counsel) Instructed By: Southwark Law Centre Hanover Park House 14-16 Hanover Park London SE15 5HG
For the Respondent	MR ANDREW BURNS (of Counsel) Instructed By: Metropolitan Police Service Solicitors Department New Scotland Yard Broadway London SW1H 0BG


 


MR RECORDER LANGSTAFF QC:

1. Mrs Ekpe brought complaints against the Respondent employer ("the employer") under the Disability Discrimination Act 1995 and the Race Relations Act 1976. In a preliminary hearing the Employment Tribunal sitting at London Central considered only an issue arising in respect of her claim to have been discriminated against on the grounds of disability. In extended reasons promulgated on the 11^th July 2000, it decided that she did not have a disability. She appeals against that decision.
2. Disability is defined by Section 1(1) of the Disability Discrimination Act 1995 as:-

"A physical or mental impairment which has a substantial and long term adverse effect on (the Applicant's) ability to carry out normal day to day activities."

3. It was common ground between the parties that Mrs Ekpe suffered from a wasting of the intrinsic muscles of her right hand. It was accepted before us, as it had been before the Employment Tribunal, that this constituted an impairment within the meaning of Section 1.
4. It could hardly be suggested that an impairment of the hand, constituting a weakness of some of the muscles required for its full function, did not have an adverse effect upon Mrs Ekpe's ability to carry out many activities. This, too, was not in dispute.
5. The central issues in the appeal were whether the adverse effect was "substantial" and whether the impairment had an effect upon "… the Applicant's ability to carry out normal day-to-day activities".

The Relevant Facts

6. The Tribunal had before them a statement of evidence from Mrs Ekpe. She said in this that she could not carry heavy shopping, scrub pans, peel, grate, sew or even put rollers in her hair. She said that sometimes she had to apply her makeup, as well as feeding herself, with her left hand. If her hands became cold the pain became severe. During the winter months she said she experienced difficulty in opening a door when her right hand was cold. There were many other things she said she was unable to do, as a result of which she tried to avoid doing such actions.
7. In determining whether or not Mrs Ekpe was suffering from a substantial adverse effect in respect to normal day-to-day activities, the Tribunal looked at most of the particular matters referred to in her statement in turn. As to shopping, the Tribunal said that the evidence suggested that it would be "… only the heavy shopping with which she was unable to cope", and commented "that is not the appropriate test in deciding whether she was suffering from a substantial adverse effect in respect of everyday objects". The Tribunal took into account in reaching this conclusion not only that which the Appellant could not do – carry heavy shopping – but also things which she could do, such as pick up objects of moderate weight with one hand, and carry a moderately loaded tray.
8. As to cooking, the Tribunal concluded that because Mrs Ekpe said in evidence that she could "just cook normally", there was no substantial adverse effect upon this activity. She could not, however, scrub pans normally. Here, the Tribunal concluded that because she could scrub pans by adapting her grip, or by using the muscles around her elbows, the adverse effect upon her of her inability to scrub pans normally would be no more than minimal.
9. Again, the Employment Tribunal focused upon things which it concluded the Appellant could do: founding itself upon her evidence that she could "just cook normally", the Tribunal concluded that she could peel and grate.
10. It took the same approach when dealing with whether or not the Appellant was able to apply make up. Because her evidence was that it was only sometimes that she had to apply make up with her left hand, it concluded that she was still able to apply make up, and that "… even if it is a normal day-to-day activity … it does not seem to have a substantial adverse effect".
11. Next, the Tribunal appears to have come to the conclusion that the Appellant was not able to put rollers in her hair. However, with regard to both that and the application of make up, the Tribunal came to the surprising conclusion that neither of these were normal day-to-day activities. Its reasoning for doing so was by reference to the guidance issued by the Secretary of State under Section 3 of the 1995 Act. Paragraph C2 of that states:

"The term "normal day-to-day activities" is not intended to include activities which are normal only for a particular person or group of people. Therefore in deciding whether an activity is a "normal day-to-day activity" account should be taken of how far it is normal for most people and carried out by most people on a daily or frequent or fairly regular basis."

Using that as its test, the Tribunal continued:-

"It seemed to the Tribunal that putting rollers in one's hair and applying make up are not normal day-to-day activities. To start with, they are activities carried out almost exclusively by women. Secondly, using rollers is an activity that the Tribunal believes is only carried out by a minority of women. Even if the Tribunal is wrong as to the proportion of women who use rollers, it is clear that these are activities that are normal only for a particular group of people, namely mostly women."

12. It is apparent from paragraph 22 of the Extended Reasons that the Tribunal reached its conclusion that the Appellant did not have a disability in part because of its reasoning, on the basis set out, that neither the application of make up nor the putting of rollers in hair, were normal day to day activities.
13. One other feature of the Tribunal's decision deserves special mention. It took a dim view of the reliability of the Appellant's evidence. This is apparent throughout, but a major contributing factor to it emerges in the following sentence, from paragraph 8 of its Reasons:-

"Mrs Ekpe appeared to indicate that there was very little indeed that she could do with her right hand but, during the course of the hearing, she was able to manipulate an extremely inconvenient style of ring binder containing over 330 pages with her right hand."

Submissions

14. Mr. Oudkerk who appeared before us for the Appellant (but did not appear below) made three main points. First, he focused upon the Tribunal's discounting of the day-to-day nature of an activity as being normal because it was undertaken almost exclusively by women, and indeed by a minority of them. Secondly, Mr Oudkerk complained that the Tribunal had formed its own view as to the extent of the Appellant's disability, by its observation of her. This was unsafe. He argued that the extent of her disability was a medical issue, and could not be determined by observing what the Claimant could do, particularly when there had been no exploration of that ability with the medical experts who were called, just as there was none with the Appellant herself. It might well have been consistent with her impairment. Thirdly, he sought permission to argue a new ground of Appeal, that the Tribunal did not consider whether or not the Appellant would have been disabled in the use of a keyboard or keypad. This was said to be objectionable because paragraph C15 of the Guidance specifically refers to the ability to type. It would be artificial to suggest that the Employment Tribunal should not look at such abilities on the basis that they were principally related to the world of work, since they had an everyday, not just a workday, impact. One only had to think of keypads on telephones, or television controls, or the like to see that that was so. Mr Oudkerk pointed out that the Appellant's case was that she could not type nor use a mouse, and that the central complaint in her Originating Application was that she had been required to move to a job which involved keyboard duties, which she could not do, and which she told her employers she could not do. The Tribunal did not deal with this evidence in terms, because the question of disability was treated as a preliminary issue. Nonetheless, it had noted that the impairment of which the Appellant complained had been suffered "… as a result of mild polio as a child and because of the use of a keyboard", and thus recognised that there was material before it from which it could conclude that her use of any keyboard or keypad was impaired.
15. In response, Mr Burns for the employer sought to rely upon the reasoning of the Employment Tribunal. The issues determined were matters of fact. It was not for the Appeal Tribunal to interfere. In particular, the Employment Tribunal was entitled to take a view as to the credibility and reliability of the Appellant. It had done so. That view suggested that the evidence which the Appellant was giving was exaggerated, sometimes extensively. It assessed the medical evidence, and that did not significantly support her case. It accepted the evidence of a hand surgeon, Mr Semple, who was suspicious of the reported extent of her disabilities.
16. The Tribunal were entitled, he submitted, to look at the way in which the Appellant handled documents before them. She had been claiming an inability to use her hand. They saw her act to the contrary. He pointed out that Mr Oudkerk had conceded that if a litigant complained, for instance, of great difficulty in walking, and then walked normally or ran out of the courtroom, the Court hearing that case would be entitled to come to the conclusion that the disability had been grossly exaggerated, if indeed it existed at all. The observations that the Tribunal made of the Appellant when she gave evidence, over some time, were in that category.
17. Mr. Oudkerk's third argument sought to introduce a point which had not been argued on Mrs Ekpe's behalf by her then lawyers before the Employment Tribunal. We should decline permission for the Notice of Appeal to be amended to allow the point to be taken. Even if we granted permission, we should nonetheless find that the Appellant's ability to use the keyboard was relevant to the resolution of the issues in her substantive claim, but not suitable for determination as part of the preliminary point, for it was not accepted by the employer that she had difficulties in the use of a keyboard. The employer would maintain that she was able to use a keyboard. Her problem was a reluctance, rather than an inability, to do so. Moreover, keyboard use was an issue which, for the very same reasons that Mr Oudkerk suggested the Tribunal should have looked at the matter, must have been at the forefront of the Appellant's mind, and she and her lawyers must have considered whether to raise it as an issue at the preliminary stage, and decided not to do so. If a tactical decision of that sort had been made, as appeared likely, the appellant could not now resile from it.
18. Where Mr Oudkerk supported his argument that the Tribunal should have enquired into the extent of the Appellant's abilities to use a keyboard by reference to Goodwin v. The Patent Office [1999] IRLR 4, para 21 in which Mr Justice Morison had indicated that Tribunals should take an interventionist, inquisitorial role, it should be appreciated that the then President was in this respect out on a limb. The usual rule applicable in relation to appeals from Employment Tribunals was that in Jones v. Governing Body of Burdett Coots School [1998] ICLR 521, which was that the discretion of an Appeal Tribunal to allow a new point of law to be raised or a conceded point to be re-opened should be exercised only in exceptional circumstances and for compelling reasons, especially if the result would be to open up fresh issues of fact which, because the point was not in issue, were not sufficiently investigated before the Employment Tribunal. There is such a strong public interest in the finality of litigation that the inexperience of a party's advocate would not be a sufficient reason to allow new points to be raised, or conceded points to be re-opened. Nor was the importance of the point to be raised of significance. This, being the ratio of the Court of Appeal in Jones, was binding. There was nothing special about the nature of disability claims which took them outside this general rule.

The Law

19. The starting point in reviewing the law must be the statute. Section 1(1) is expressly subject to the provisions of Schedule 1 to the Act. That Schedule is entitled "Provisions Supplementing Section 1". Paragraph 4 of the Schedule is headed "normal day-to-day activities". Paragraph 4(1) provides as follows:-

"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 one of the following –

(a) mobility;

(b) manual dexterity;

(c) physical co-ordination;

(d) continence;

(e) ability to lift, carry or otherwise move everyday objects;

(f) speech, hearing or eyesight;

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

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

20. In addition, (i) Paragraph 4(2) provides that Regulations may prescribe circumstances in which an impairment having an effect not falling within (1)(a) to (h) is nonetheless to be taken to taken to affect the ability of a person to carry out normal day-to-day activities, or circumstances in which an impairment having an effect within (a) to (h) is to be taken not to affect such an ability; and (ii) Paragraph 5 provides that Regulations may make provision for certain affects to be treated as substantial, or the converse. It was not contended before us that either was relevant.
21. Accordingly, thus far, following the statutory provisions without recourse to authority, the enquiry as to whether an impairment affects the ability of the person concerned to carry out normal day-to-day activities becomes an enquiry into whether or not any of the abilities (or, as they have been termed, "capacities") listed in paragraph 4(1)(a) to (h) has been affected. It should be approached by a Tribunal by focussing upon those abilities.
22. By virtue of Section 3 of the 1995 Act, the Secretary of State may issue guidance about the matters to be taken into account in determining (amongst other matters) whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities. Sub-section (2) is worth noting. It provides that such guidance :

"..may, among other things, give examples of –

(a) effects which it would be reasonable, in relation to particular activities, to regard for the purposes of this Act as substantial adverse effects;

(b) effects which it would not be reasonable, in relation to particular activities, to regard for such purposes as substantial adverse effects; …."

23. The opening words of this sub-section make it clear that what is to be provided is by way of example only, and is not intended to provide a determinative test of whether there is an impairment which has a substantial effect on normal day-to-day activities: it is in the nature of examples that they are illustrative rather than conclusive.
24. So far as manual dexterity is concerned, paragraph C15 of the Code says that it would be reasonable to regard as having a substantial adverse effect the ability to press the buttons on keyboards or keypads but only much more slowly than is normal for most people.
25. So far as the ability to lift, carry or move everyday objects is concerned, paragraph C18 regards it as reasonable to regard the inability to carry a moderately loaded tray steadily as having a substantial adverse effect.
26. The approach indicated by the statute, its schedule and the guidance made pursuant to it is thus to ask whether or not any of the abilities set out in the Schedule at paragraph 4(1) has been affected. In answering the question whether the effect is substantial, regard may be had to the examples given by the Guidance – but it needs to be emphasised that they are examples only. To focus upon the detail of an example may be to exclude the broader picture of which the detail is only part – yet it is that broader picture (implied in a question such as "is manual dexterity affected?") that has to be considered. In colloquial terms, it may constitute an inability to see the wood for the trees.
27. Thus far we have considered what would be our approach in the absence of authority. Authority serves only to confirm it. In Goodwin v Patent Office [1999] IRLR 4, this Tribunal presided over by the President, Mr. Justice Morison, noted (at paragraph 34) that the Act was concerned with an impairment on the person's ability to carry out activities. He noted that the fact that a person can carry out certain activities does not mean that his ability to do so has not been impaired – in the present case one might have thought there was a classic example, in that the manual dexterity of the Appellant had been affected, demonstrated by the fact that she had difficulty in applying make-up and attending to her hair. The question to be answered is not whether she can still do such activities, but whether she does so less easily.
28. Both Goodwin and the subsequent case of Vicary v British Telecommunications plc [1999] IRLR 680 emphasise that the determination of whether there is a substantial adverse impact must depend upon what a person cannot do, rather than what he can still do. It is not a question of balancing individual losses of function directly against retained abilities. We would comment that if, as we suggest, the focus should be on whether or not the ability referred to in Paragraph 4(1) of the Schedule has been affected, there is little room for drawing up such a balance sheet to answer the question whether there has been any adverse impact: the question "Has manual dexterity been affected?" in circumstances where a person manipulates buttons only with difficulty cannot sensibly be answered by the riposte: "Well, she can still write a letter without difficulty…".
29. This proposition has been put beyond doubt by Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19. The Employment Appeal Tribunal criticised an Employment Tribunal for taking an approach that took examples of what the Appellant could do – such as being able to eat, drink and catch a ball – and weighed them against what she could not do – such as negotiate a pavement edge safely. Mr. Justice Nelson noted that the Guidance was only illustrative, accepted that a tribunal must look at the matter in the round, considering the evidence as a whole, but added (at paragraph 27):

"Whilst it is essential that a tribunal considers matters in the round and makes an overall assessment of whether the adverse effect of an impairment on an activity or capacity is substantial, it has to bear in mind that it must concentrate on what the applicant cannot do or can only do with difficulty rather than on the things that they can do. This focus of the Act avoids the danger of a tribunal concluding that as there are still many things that an applicant can do the adverse effect cannot be substantial"

30. The question whether the impact of the impairment is upon normal day-to-day activities is, of course, judged by asking whether or not any of the abilities, capacities, or capabilities (whichever expression is adopted) referred to in Paragraph 4(1) of the Schedule to the 1995 Act has been affected. If it is, then it must be almost inevitable that there will be some adverse effect upon normal day-to-day activities. An impairment of manual dexterity – to take that as an example – is almost bound to affect a myriad of individual activities, not all of which could satisfactorily be listed even by the most able and eloquent of applicants. Assuming for the moment, without deciding (because the contrary interpretation is not necessary for the resolution of this case), that an impairment in any of the capacities listed at Paragraph 4(1) is not in itself determinative of the question of impact on normal day-to-day activities, but that the impairment must be shown to have some such effect, it nonetheless seems to us that it will only be in the most exceptional case that any such impairment will not do so. If there were some impairment that affected the concert pianist only in his ability to manipulate the keys of his piano, it would affect his manual dexterity but would not affect normal day-to-day activities within the meaning of the Act: but it is difficult to contemplate what the nature of an impairment might be that had such a selective effect. In most normal cases it is likely that the answer to the question "Has a Paragraph 4(1) ability been affected?" will also answer the question whether there has been an impact on normal day-to-day activities.
31. Whether such an impact is "substantial" has then to be evaluated. This depends on whether its effect is more than merely trivial (Goodwin at paragraph 42; Vicary at paragraph 6).
32. Even if we were wrong in taking too broad an approach in paragraph 30 above to the resolution of whether an impairment has an effect upon normal day-to-day activities, we should nonetheless emphasise that what is normal cannot sensibly depend on asking the question whether the majority of people do it. The antithesis for the purposes of the Act is between that which is "normal" and that which is "abnormal" or "unusual" as a regular activity, judged by an objective population standard. Just as what is "substantial" for the purposes of the Act may best be understood by defining it as anything which is more than insubstantial, so too may what is "normal" best be understood by defining it as anything which is not abnormal or unusual (or, in the words of the Guidance, "particular" to the individual applicant).
33. This approach is, again, demonstrated by case-law. It seemed to Mr. Justice Morison in Vicary (at paragraph 13)

"…obvious that making beds, doing housework (polishing furniture), sewing and cutting with scissors would be regarded as normal day-to-day activities as would minor DIY tasks, filing nails, curling hair and ironing."

34. Further, the identification of whether there is a disability, as defined by section 1 of the Act, does not in itself determine any remedy under that Act. In employment, any alleged discrimination may be justified by the employer. The extent and nature of the disability will plainly be relevant to the issues that arise when considering justification. The question whether there is a disability at all thus tends towards being a threshold provision, and should be viewed in that light

Conclusions

35. The Tribunal recognised that the Appellant was complaining of an impairment to her manual dexterity and her ability to lift, carry or otherwise move heavy objects (at paragraphs 4 and 5 of its reasons).
36. It did not thereafter address the question whether those abilities were impaired other than by dealing with a number of specific aspects which the Appellant claimed were examples of the impairment. It did so item by item, reaching a conclusion upon each. In doing so, it was in danger of failing to see the wood for the trees, and to recognise that the functions debated before it were no more than illustrative aspects of the alleged loss of ability it had to consider. In our view, it addressed whether or not each example was justified as a complaint as distinct issues. It should rather have asked whether or not, taking the evidence as a whole, the admitted impairment had an adverse effect upon either or both manual dexterity and the ability to lift, carry or move everyday objects.
37. Further, as we have pointed out in our review of the facts, the Tribunal considered what the Appellant could still do, rather than what she could not do.
38. This failure to take the correct approach would be sufficient in itself to vitiate the decision. However, the Tribunal was separately in error, even on the piecemeal approach it adopted towards assessing effect. It seems to have concluded (despite a confusing double negative in paragraph 20, and despite its concerns about her reliability as a witness) that Mrs. Eckpe could not put rollers in her hair, and that she had such difficulty in using her right hand that she sometimes had to use her left to apply make-up. Yet it discounted the effect that this had by concluding that neither was a "normal day-to-day activity."
39. The basis of the Tribunal's reasoning for doing so was, first, that these are activities carried out almost exclusively by women, and, second, "only for a particular group of people, namely mostly women." This reasoning is plainly wrong. The logic would exclude anything done by women rather than men, or vice versa, as not being normal. What would strike the person in the street as entirely normal behaviour – doing up the zip on her dress, for a woman; shaving, for a man – would not be classed as a normal day-to-day activity.
40. We need go no further than to say the reasoning is obviously wrong – so much so, as to be perverse. However, we should point out that the errors which led the Tribunal to this perverse conclusion were (i) to treat the borderline between that which is normal as a day-to-day activity and that which is not, as being determined by whether more or less than 50% of the population would do it, rather than by asking whether the activity can be considered as abnormal or unusual; and (ii) to regard the word "particular" contained in the reference in the Guidance to a "particular group of people" as meaning "identifiable" rather than "defined by some singular characteristic", and then apparently asking whether the group constituted the majority of the population.
41. In short, putting rollers in hair is undoubtedly a normal day-to-day activity, even though a majority of the population may not do it. (Mr. Justice Morison himself referred to doing up one's hair as a normal day-to-day activity in paragraph 13 of Vicary.) It is not an activity performed just by a particular group of people, but by many women. A "particular group of people" has to be defined by reference to some singular characteristic – it is not sufficient that they should simply be all of the same sex. Anything done by most women, or most men for that matter, is in our view a normal day-to-day activity.
42. This is sufficient to dispose of the appeal. For completeness, however, we add that we reject the ground of appeal that the Tribunal were wrong to have regard to the way in which Mrs. Eckpe handled a ring-file binder. It seems to us that a decision as to whether an admitted disability has, or has not, an adverse impact on normal day-to day activities and whether that impact is substantial is quite properly to be influenced by the behaviour of an applicant as demonstrated before the Tribunal. That said, we would expect any Tribunal considering whether to draw any conclusion from such behaviour to raise that possibility at the hearing, so that it may be dealt with. It should bear in mind that behaviour before a Tribunal may not be representative of behaviour generally. In the case of some conditions, notably back conditions, there may be "good days and bad days". In others, an applicant may put on a brave face, and this may be misinterpreted. Particularly where there is expert medical evidence available, any tentative conclusion to be drawn from observation of the applicant by the inexpert eyes of the members of the Tribunal should ideally be raised with those experts to see whether there may not be some ready explanation for it. Nonetheless, we cannot say that in the present case the Tribunal's failure to take those steps amounted to an error of law. It was presented with an applicant who was apparently claiming that there was very little she could do with her right hand, yet it saw her doing a lot. It was in our view entitled to take that into account in helping to determine that other complaints made by her were exaggerated.
43. Next, we reject the submission, raised as a new ground of Appeal for which permission was sought, that the Tribunal should have had regard of its own motion to Mrs. Eckpe's ability – or lack of it – to manipulate a keyboard. Evidence of this would undoubtedly have been relevant, and may have helped to determine whether indeed she had a lack of manual dexterity which substantially impaired her normal day-to-day activities. But it was for the Tribunal to determine the case on the evidence before it, as presented by the parties. Although we would not wish to say anything to detract from the common sense guidance given by Mr. Justice Morison in Goodwin at paragraph 21, we do not think that he was going so far as to suggest that an Employment tribunal would commit an error of law if it did not adopt the interventionist role he advocates. As Mr. Justice Lindsay observed in the unreported case of Environment Agency v Humphreys ...19^th. November 1999) at paragraph 28:

"It would have been a change of the utmost significance if the case were to be that in disability discrimination, unlike all other employment litigation, the employment tribunal should be under a duty itself to enquire into factual possibilities not opened up by the parties and to follow up matters beyond the distance that the parties themselves choose to go. That it may sometimes be desirable that they should do so is plain and is as Mensah v East Hertfordshire NHS Trust [1998] IRLR 534 points out, but to say that the tribunal was to be under a duty so to do would be so radical a step that one could reasonably expect clear statutory language if it were to be required. None is to be found, nor, in our view, does the Morse authority impose such duty…"

44. In any event, this was expressly argued as a new ground of appeal, for which permission would be sought. For convenience and expedition, we heard the case as a whole, without determining first the issue of permission. Having considered it, we do not think it would be right to exercise our discretion to permit the Notice of Appeal to be amended to take the point. It was a point which would probably have involved further evidence, and further questioning. It was one of which the applicant must have been well aware, since it was at the heart of her substantive case. Yet she chose not to run it. We cannot see that it would be right to let her argue it now.
45. Despite our rejection of those two grounds of appeal, the appeal must nonetheless be upheld for the reasons given above at paragraphs 35 – 41.
46. The question then arises whether we should ourselves determine whether the case should proceed on the footing that Mrs. Eckpe suffered from a disability within the meaning of the Act, or whether we should remit the matter for further consideration by a Tribunal as to whether any adverse effect was, or was not, substantial.
47. Since the Tribunal expressly commented that the difficulty the Appellant had in applying make-up was not a substantial adverse effect, but made no such comment in respect of her inability to do her hair, it appears to have assessed the inability of the Appellant in this latter regard as substantial. It rejected the conclusion that this led to there being a disability only on the basis that putting rollers in her hair was not a normal day-to-day activity. Once it is accepted that that was not a proper basis for rejecting the conclusion, it follows that on the facts as found by the Tribunal, and adopting its own evaluation of those facts, there is here a disability.
48. We are hesitant to adopt this conclusion too readily, since this might appear to endorse the piecemeal evaluation of the evidence which we have already criticised. However, the conclusion is supported by other facts which the Tribunal found – namely, that she could not carry heavy shopping, would have to adapt her approach to such as scrubbing pans, and had difficulty in applying make-up. We are sufficiently reassured that this is a case in which manual dexterity was plainly affected, and that the degree to which it was affected had an impact which was more than minimal on normal day to day activities. Even taking into account the doubts which the Tribunal had as to the reliability of Mrs. Eckpe, it would be bound on a proper approach to the facts it found to hold that she had a disability within the meaning of the 1995 Act. Accordingly, we accept the invitation held out to us by Mr. Oudkerk to hold that the appellant does on the facts found by the Tribunal have a disability. This determination is, of course, preliminary to the hearing of her substantive case, in which the exact nature and extent of that disability will be relevant. The appeal will therefore be allowed on that basis.