United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS HERBERT IN PERSON


 


MR JUSTICE HOOPER

1. This is a Preliminary Hearing and we are unanimously of the view that there are no arguable grounds which would justify this Tribunal making an Order that there should be a full hearing. The Appellant Mrs Herbert, appeals against the decision of the Employment Tribunal sitting at Bedford.
2. By that decision the Tribunal concluded that the Appellant was not a person suffering from a disability within the meaning of the Disability Discrimination Act 1995. As the Tribunal pointed out, Section 1 of the Act provides that a person has a disability for the purposes of this Act "if he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day-to-day activities."
3. Mrs Herbert was represented by Counsel, Miss Tuck before the Tribunal and Miss Tuck identified two of the sub paragraphs in paragraph 4 of Schedule 1 namely (d) continence and (e) ability to lift, carry or otherwise move everyday objects.
4. The Tribunal heard evidence both from the Appellant herself and from Mr David Graham a medical consultant called by the Respondent.

"The applicant's evidence is that she has suffered back pain following an accident at work on 17 December 1996 and that she is still suffering from that back pain some 3½ years later. In her evidence the applicant told us about a number of difficulties which she now experiences in her day to day life as a result of the pain from which she suffers and she tells us that she now also suffers from stress incontinence.

What the Tribunal has to decide is whether (1) the applicant has a physical or mental impairment (2) whether that impairment has a substantial effect upon her (3) whether that effect is long-term and (4) whether it has an effect on the applicant's ability to carry out normal day to day activities.

With regard to the Applicant's ability to lift, carry or otherwise move everyday objects, having considered the evidence before us today and the medical reports produced to us, we find (1) that the applicant has a physical impairment (2) that impairment does not have a substantial effect upon her (3) the impairment is long-term and (4) that the impairment does not have a substantial effect on her ability to carry out normal day to day activities.

We find on the evidence that the applicant can walk, drive, lift objects of a reasonable weight, do light shopping, care for children, and generally deal with her day to day tasks. While she has some help in the house and in the garden, this is for a very limited period each week.

In so far as she relies upon her stress incontinence we are not on the evidence before us, and bearing in mind the advice given in the guidance relating to disability satisfied that her lack of continence has a substantial adverse effect. She did not in evidence indicate that it had an adverse effect upon her ability to carry out normal day to day activities.

The burden of proof in these matters is on the applicant, she has failed to discharge that burden and accordingly it is the unanimous decision of the Tribunal that the applicant is not a person suffering from a disability within the mean of the 1995 Act."

5. Mrs Herbert appears on her own behalf today. We have taken into account the notice of appeal which was prepared by her legal advisers at the time, her hand written skeleton argument and her oral submissions today. The thrust of her argument is that the decision which the Tribunal reached was just not the right decision. She says that the Tribunal put too much stress on the report of the medical consultant and too little stress on the evidence that she herself gave. It seems to us that the Tribunal did concentrate, as the Extended Reasons show, on the evidence that she gave.
6. Mrs Herbert tells us that she has back pain and that she cannot live the normal life those who are fortunately enough not to suffer from back pain can enjoy. But as we explained to Mrs Herbert during the course of argument, the Employment Appeal Tribunal's jurisdiction is a very limited one. It can only allow an appeal if the Tribunal has reached a perverse conclusion, that is one which, no reasonable Tribunal could reach. The Tribunal looked at the various difficulties which Mrs Herbert suffers from and reached the conclusion that they did not have a substantial effect upon her ability to carry out normal day-to-day activities. In so far as stress incontinence is concerned there appears there to be a lack of evidence to support that as one of the conditions. Mrs Herbert says she was not asked the proper questions but we have to remind ourselves she was being represented by Counsel, and it is Counsel's task to bring out the case before the Tribunal.
7. In those circumstances we have no choice but to say that there are no arguable grounds and to dismiss the Appeal.