United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T LINDEN (of Counsel) Instructed by: Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA
For the Respondent	MR N GRUNDY (of Counsel) Instructed by: Mr T Scott Messrs Davies Wallis Foyster Solicitors 5 Castle Street Liverpool L2 4XE


 


JUDGE PETER CLARK

1. The five Applicants before the Liverpool Employment Tribunal, Mrs Gill and others, each brought complaints of disability discrimination against the Respondent, Tulip International (UK) Cooked Meats Division Ltd. The preliminary issue, heard by a Tribunal chaired by Mr E Lloyd Parry on 1 - 3 November 1999, was whether, in each case, the Applicant was disabled within the meaning of section 1 of the Disability Discrimination Act 1995 DDA. By a decision promulgated with Extended Written Reasons on 7 December 1999 the Tribunal found that none were. Against that decision this appeal is brought.
2. Each had applied for a post with the Respondent. Each had something of a medical history. Each was turned down for the post applied for as a result of the medical opinion of Dr Bishop, the company's Occupational Health Physician.
3. We have seen the witness statement of each Applicant, describing in particular the effect of their respective medical conditions on their day to day activities. The Tribunal also heard live evidence from Dr Bishop, which was subject to cross-examination. The Applicants put in medical reports in each case from Dr Glynne Thomas of the Dept of Occupational Medicine at the Royal Liverpool Hospital. In short, Dr Bishop was of the view that in each case the Applicant was not suffering a substantial adverse effect on her day to day activities; Dr Glynne Thomas took the opposite view.
4. Having considered the evidence and set out their findings of fact in each case, the Tribunal concluded that the Applicants had exaggerated in their evidence. The Tribunal preferred the assessments made by Dr Bishop. They were less than impressed with the evidence of Dr Glynne Thomas, who anyway had not been exposed to cross-examination.
5. They found that in each case the Applicant had not suffered a substantial adverse effect on her ability to carry out normal day to day activities. In these circumstances the Applicants had failed to make out their case that they were disabled for the purposes of the Disability Discrimination Act.
6. In this appeal Mr Linden takes two broad points of law affecting all five cases and further raises a discrete point in the case of Miss McCartney.
7. First, it is submitted that the Tribunal failed to apply the correct test in considering the word "substantial" in section 1(1) of the Disability Discrimination Act and this is demonstrated first, by their failure to show within their reasons that they had directed themselves as to the law and secondly that it is apparent from the facts that the Tribunal placed too high a burden on the Applicants to establish this part of their case.
8. As to the first contention, it is common ground between Counsel that a failure to set out the relevant statutory provisions, and in this case, the Secretary of State's guidance which the Tribunal is enjoined to take into account by section 3 of the Disability Discrimination Act, is not of itself fatal to the Tribunal's eventual conclusion. We agree, and adopt the approach of the Court of Session in Conlin v United Distillers [1994] IRLR 169 in the context of a different test arising under section 98(4) of the Employment Rights Act 1996.
9. In Goodwin v Patent Office [1999] ICR 302, 307F Mr Justice Morison observed that, at least during the early period of the Act's operation, reference should always be made explicitly to any relevant provision of the guidance or code taken into account by a Tribunal. However the Act was well into operation by the time of this Tribunal hearing in November 1999. Goodwin itself had been reported in the January 1999 edition of the Industrial Relations Law Report.
10. More particularly, Mr Grundy has told us on instructions from his solicitor who appeared below, without dissent from Mr Linden, that the union legal officer appearing on behalf of the Applicants drew attention to the meaning of "substantial" set out in the guidance, namely "more than minor or trivial". In these circumstances we are not persuaded that the Tribunal did not have the correct test in mind, albeit that they do not set it out specifically in their reasons.
11. Be that as it may, can it be said that the Tribunal nevertheless raised the threshold impermissibly in this case? We think not. The reason why the Tribunal concluded that the Applicants had not made out the substantial condition was because their account of the limitation on their day to day activities was not accepted by the Tribunal, as a matter of fact. It seems that Dr Bishop could not accept, in cross-examination, that the limitations described by the Applicants were consistent with her clinical findings at the time of her examination in February 1999. That evidential conflict was expressly resolved by the Tribunal against the Applicants. That is a question of fact for the Tribunal, not for us.
12. The second general ground of attack is that, contrary to the guidance in Goodwin (309D - E), the Tribunal has focused on what the Applicants could do, not what they could not do or could only do with difficulty. By way of example Mr Linden points to the findings, based on Dr Bishop's reports in two cases, those of Mrs Upton and Mrs Cadogan, that they each had a reasonable level of functional ability in their day to day activities.
13. We accept that a Tribunal would be wrong to focus solely on what an Applicant can do to the exclusion of that which she cannot do. However that is not what happened in this case. Can do and cannot do are two sides of the same coin. It seems to us that what Dr Bishop was doing was looking at both sides of the same coin. The Tribunal, recognising that it was for them, not the doctors, to answer the statutory question, resolved it in favour of the Respondents. They accepted Dr Bishop's clinical findings; as a result they found the Applicants to be exaggerating their accounts of what they could not do in terms of day to day activities and concluded that in those circumstances they had failed to pass the admittedly low threshold imposed by section 1 of the Disability Discrimination Act.
14. Finally, Miss McCartney, who suffered from Bell's Palsy. Mr Linden seeks to argue that in her case the Tribunal failed to take account of the specific provision relating to severe disfigurement contained in paragraph 3(1) of schedule 1 to the Act.
15. There are two answers to that point, as Mr Grundy submits. First, the discrete point was not taken in either the original Notice of Appeal or amended Notice of Appeal, it not having been taken specifically below. Secondly, and more substantially, the Tribunal found as a fact in paragraph 5(b) of their reasons that the disfigurement in Ms McCartney's case was modest. It therefore did not pass the "severe" threshold on the facts. It follows that having considered the grounds advanced by Mr Linden in support of the appeal we are not persuaded that any error of law is here made out. Quite simply the Applicants lost on the facts. In these circumstances, we must dismiss this appeal.