United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS KATIE NOWELL (of Counsel) Instructed By: Messrs Horwich Farrelly Solicitors National House 36 St Ann Street Manchester M60 8HF
For the Respondent	MR JAMES LADDIE (of Counsel) Instructed By: Messrs Michael Scott & Co Solicitors 27 Britannia Street London WC1X 9JP


 


MR JUSTICE LINDSAY (PRESIDENT):

1. This is the appeal of the College of Ripon & York St John in the matter C.C. Hobbs against that College. The appeal is against the decision of the Employment Tribunal at Leeds under the Chairmanship of Mr D.R. Sneath. The appeal concerns disability discrimination. The unanimous decision of the Tribunal below on a preliminary point, sent to the parties on 22nd March 2000, was that the applicant below, C.C. Hobbs, was disabled within the meaning of the 1995 Act. The College is represented by Miss Nowell; C.C. Hobbs by Mr Laddie. Both so appeared also below.
2. On the 18th August 1999 Dr Claire Hobbs, a lecturer in cultural studies, then 41 years of age, lodged an IT1 against her employer, the College of Ripon & York, St John. She had been in the College's employ since September 1995. She claimed "Breach of section 5 and section 6 of the Disability Discrimination Act 1995". Sections 4 and 5 could only assist Dr Hobbs if she was "a disabled person". As to that, section 1 of the 1995 Act provides:-

"(1) Subject to the provisions of Schedule 1, 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.

(2) In this Act "disabled person" means a person who has a disability."

3. Schedule 1 includes, at paragraph 1 (1) that "mental impairment includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness".
4. On 31st July 1996 the Secretary of State released a booklet called "Guidance on Matters to be taken into account in determining questions relating to the Definition of Disability". Such guidance, in some cases, has to be taken into account by Tribunals - section 3 (3) - but there is no specified case in which it must not be taken into account.
5. In her IT1 Dr Hobbs explained that she had been on sick leave for some 13 months from March 1997 but had then returned to work. She had later been signed off work with the diagnosis of "stress reaction" from the late summer of 1999. Her IT1 spoke of her having experienced slow progressive muscle weakness and wasting. The IT1 did not in terms specify whether it was a physical or mental impairment with which she was afflicted or from which she suffered.
6. On the 19th September 1999 the College completed its IT3. Impairment was not in terms denied but there was a catch-all defence that the College had not discriminated against Dr Hobbs under the 1995 Act as alleged or at all.
7. There was an Interlocutory Hearing at the Employment Tribunal at which the College indicated that it did not admit that Dr Hobbs was disabled within the meaning of the Act. The Employment Tribunal ordered that the parties should jointly instruct a medical expert to prepare a report regarding Dr Hobbs's alleged disability. Her solicitors accordingly wrote (presumably in terms agreed with the College's solicitors) to Dr David Bates of the neurology department at the Royal Victoria Infirmary at Newcastle.
8. Dr Bates examined Dr Hobbs and produced a report that was, it seems, sent to the parties on or about the 15th January 2000. His report was based not only on his examination of the Applicant but on a review of some medical records held by her General Practitioner and copies of some other and earlier medical investigations that had been made in relation to Dr Hobbs. We will need to refer to his report in more detail later but, at the end of his report, he says:-

"I am not competent to provide an opinion as to whether she has a significant psychological disability and it might be appropriate to seek an opinion from a consultant psychiatrist."

9. Dr Hobbs then produced a written witness statement that comments upon Dr Bates's report.
10. On the 25th February 2000 the Employment Tribunal re-fixed a Preliminary Hearing, (earlier fixed for the 21st and 22nd January 2000) for hearing on the 14th March 2000. Although we have not seen precisely how the issue for decision at the Preliminary Hearing was framed, it would seem that the question for the Preliminary Hearing was and was only whether Dr Hobbs was disabled within the meaning of the 1995 Act. The question, it would seem, was not at that stage broken into whether she had either, on the one hand, a physical or, alternatively, a mental impairment. If that was so then Dr Hobbs could succeed at the Preliminary Hearing upon proving either a physical or a mental impairment as long as, in either case, the other requirements of section 1 (1) of the Act were satisfied. It does not seem to have been a case, unlike some others, in which an applicant, in his or her IT1 or prior to a hearing at the Employment Tribunal, had already nailed his or her colours to one only of those two possible masts - contrast Rugamer -v- Sony Music Entertainments U.K. Ltd [2001] IRLR 644.
11. On the 28th February 2000 Dr Hobbs's solicitors, in effect noting that last passage we have cited above from Dr Bates's report, suggested to the Employment Tribunal that it would be of assistance to the Tribunal if a report from a consultant psychiatrist were commissioned. They asked that the Preliminary Hearing should be adjourned so that that could be done. They also asked that the hearing could be refixed for a date other than 14th March as Dr Bates would be unable to attend on that day.
12. On the following day the Employment Tribunal by letter refused an adjournment. It was unfortunate that it did so. In what is a difficult area for persons without informed medical knowledge it is not unknown for Employment Tribunals to adjourn of their own motion so as to have further and adequate medical evidence laid before them - see Rugamer supra at paragraph 15 - or for there to be appeals raising difficult questions as to whether or not they should have done so - see Leonard -v- Southern Derbyshire Chamber of Commerce [2001] IRLR 19 paragraph 34. In other cases there has even been argument as to the extent of the inquisitorial obligations cast upon Employment Tribunals in this area of the law - see Goodwin -v- The Patent Office [1999] IRLR 4 at paragraph 21 and contrast Rugamer supra at paragraph 47. At all events, the case proceeded without the expert guidance of the kind which Dr Bates had said might be appropriate on the possibility of psychological disability. Further, the hearing date was adhered to as the Tribunal's letter indicated also that, in view of the content of Dr Bates's report, the Tribunal could not see that Dr Bates's attendance was necessary.
13. The Employment Tribunal accordingly heard the Preliminary Issue on the date fixed, the 14th March 2000. On the 23rd March the decision was sent to the parties. It was the decision of the Employment Tribunal at Leeds under the Chairmanship of Mr D.R. Sneath and it was:-

"The unanimous decision of the Tribunal is that the Applicant is disabled within the meaning of the Disability Discrimination Act 1995. The matter shall proceed to a hearing on the merits on a date to be fixed."

14. That form of decision suggests that the question the Tribunal had before it was whether or not there was disability within the Act rather than some question differentiating between physical and mental impairment.
15. On the 3rd May 2000 the Employment Appeal Tribunal received a Notice of Appeal from the College.
16. Miss Nowell is recorded by the Employment Tribunal as conceding on behalf of the College that the effects of whatever it was that the Applicant was suffering from were substantial, long-term and adverse and affected her normal day-to-day activities. That, although not precisely fitting the requirements of section 1 (1) of the Act, was plainly intended to concede all relevant matters save for the question of whether Dr Hobbs had a physical or mental impairment. The Tribunal recorded:-

"We have to decide today whether the Applicant has a physical impairment."

That, properly speaking, was not the question for the Tribunal or, at any rate, not the only question. Miss Nowell agrees that it was not the right question. The right question was whether, at the material time, Dr Hobbs had a physical or mental impairment within the meaning of section 1 (1) of the Act. However, it is quite plain that it was upon physical impairment that the evidence and argument below concentrated.

17. If a Tribunal's conclusion that an applicant was disabled within the meaning of the Act was reached, without error of law, by way of a finding that the applicant had a physical impairment then it would matter not whether or not it could have been found, in the alternative or in addition, that he or she had a mental impairment. However, if there is error of law in a Tribunal's finding that the applicant had a physical impairment (which was the Tribunal's conclusion here), that error would not necessarily lead to a conclusion that the applicant in question was not disabled within the Act as that would leave unresolved the question of whether he or she had a mental impairment which fell within the Act. A remission to the Employment Tribunal could perhaps then become necessary, depending on how the case had been put, but, like the Employment Tribunal, we shall concentrate on "physical impairment".

Before we go into that in more detail, we need first to deal with three peripheral matters.

18. Firstly, it was not Dr Hobbs's case below that she had or might have a mental impairment. Of the possibility that an applicant might have physical or other symptoms which were purely the product of his or her mind, personality or character the Employment Tribunal said:-

"The Respondent is not saying that and there is no clear evidence to that effect."

No question of any remission on the subject of mental impairment would thus ordinarily be open to Dr Hobbs.

19. Secondly, it was not suggested that the evidence of Dr Hobbs herself gave on the subject of what she was or was not able to do or as to her symptoms was in any way untrue. The Tribunal said:-

"The Respondent does not suggest that the Applicant is malingering or lying about the symptoms which she has described to us in evidence."

Later the Tribunal expressly recorded that they were satisfied that Dr Hobbs was telling the truth in describing her symptoms and their effect.

20. Nor, thirdly, can it be argued that it is an inescapable requirement of a physical impairment that it can be described as clinically well-recognised or recognised by a respected body of medical opinion or as resulting from or consisting of some condition or illness which is so recognised. In the majority of cases, perhaps the vast majority of cases, a physical disability will, doubtless, be capable of being so described and in the absence of such a recognition there are likely to be difficulties as to evidence or credibility. However, in point of construction of the statutory language, there is no equivalent requirement in relation to physical impairment of the kind found in the 1995 Act Schedule 1 paragraph 1 (1) or Part I paragraphs 13 and 14 of the July 1996 Guidance.
21. Turning, then, to Dr Bates's report, after an introductory passage it then describes Dr Hobbs's present symptoms, those which, he said, she felt caused her disability. It is to be noted that Dr Bates was not simply relying upon what Dr Hobbs herself had asserted; Dr Bates had examined her and the symptoms we shall now describe were described by him as "Her present symptoms". First there was muscle fasciculation. That consisted of twitching in the muscles, predominantly in the lower right chest but to some extent in all parts of her body. It had been a symptom that had been present then for 2-3 years and was not improving.
22. Next there was muscle weakness which created difficulty in mobility. Her chest felt weak and her back and legs might give way when she walked any distance. She had therefore taken to using a stick from about August 1999.
23. There were muscle cramps, episodes of cramping discomfort in the right side of the chest and occasionally in the right leg and right hand following exercise. The muscles then went into spasm and were painful.
24. Looking at Dr Hobbs' past medical history, Dr Bates reported on, inter alia, a long history of otosclerosis with mild hearing loss in both ears. Dr Hobbs wore a hearing aid to the left ear.
25. In relation to the consequential effects that she suffered, Dr Bates reported that Dr Hobbs required help from her colleagues and friends in undertaking shopping, cooking and cleaning. She used taxis for most journeys because of her difficulty in mobility. Her gait was slow and, as we have already noted, she walked with the aid of a stick. She had a retained cervical and lumbar lordosis (which, we were told, was a curvature of the spine).
26. Dr Bates did not himself give oral evidence but, in addition to the witness statement from Dr Hobbs, the Tribunal heard her give oral evidence. In some cases her oral evidence tended to enlarge, but in some cases to diminish, the magnitude of the disadvantageous effects she was reported as suffering in Dr Bates's report. There is no case made that, in Dr Bates's absence, she took the opportunity to exaggerate her ills. As to muscle fasciculation, she gave evidence that she rarely passed a 24 hour period without experiencing it. It might last only for 3-5 seconds but it could recur in bursts for up to 3 hours. It was a distraction in terms of its impact on concentration but she conceded that it was not substantial. The Tribunal said:-

"Otherwise healthy people experience muscle twitching but not to the extent described by the Applicant. That suggests to us that this symptom or manifestation is a product of a physical impairment."

As to her ability to walk, she gave evidence of the high level of activity which she had earlier been able to achieve. Of the time the case was before it, the Tribunal said:-

".... She needs a stick in order to support herself whilst walking. She limits walking to a range of 500 metres because that is the distance she can go before her discomfort increases substantially. She needs to stop for a few minutes when walking, either because of cramp in her right leg or cramp in her right hand resulting from gripping the walking stick. The cramp in her right leg can increase to the point when she can barely manage to walk at all. These, again, appear to us to be physical manifestations, although in other parts of her statement the Applicant uses language which might be seen as more consistent with a psychological manifestation."

When going down stairs, held the Tribunal, she did need one hand to hold the handrail and the other hand to steady herself with the stick.

27. As to attacks of muscle cramps, the Tribunal took her evidence to be that of real pain and discomfort. During an attack she would be unable to stand up and would then experience severe difficulty walking the two or three metres between her bedroom and her kitchen. It took her some 3-4 days, held the Tribunal, to recover to what she described as any level of normal activity at all.
28. More frequently, held the Tribunal, there was cramping discomfort. They held that she rarely got through a day without experiencing some level of that disability. It could significantly impair mobility to the extent that she would find walking even two hundred metres something of a trial.
29. Her ability to carry articles was limited to a weight of no more than three or four kilograms. It was that which led her to rely on the help of friends when shopping. She could not lift a tray loaded with even one or two cups of tea or coffee. It would require both her hands for her to lift one volume of the Shorter Oxford English Dictionary. She frequently struggled to push or pull open heavy swing doors. As to her moderate hearing loss, she used a telephone which had an induction loop and a loud ringer.
30. When the Tribunal turned to the meaning in the Act of the words "physical impairment" they said:-

"In simple terms, we think it means that there is something wrong with the body as opposed to the mind."

That observation, in March 2000, chimes well with the observations made in Rugamer supra in July 2001 where, at its paragraph 34, the EAT says:-

"Impairment for this purpose and in this context has in our judgment to mean some damage, defect, disorder or disease compared with a person having a full set of physical and mental equipment in normal condition. The phrase "physical or mental impairment" refers to a person having (in everyday language) something wrong with them physically, or something wrong with them mentally."

31. It is a notable feature of the 1995 Act that not only is the word impairment not defined but its meaning or ascertainment was not even a subject upon which the Secretary of State was authorised to give guidance under section 3 of the Act - see section 3 (1) and (2). The word was not defined in the interpretation section, section 68. Schedule 1 of the Act, to which section 1 (1) was made subject, contains nothing that throws any light on the meaning of physical impairment. Moreover, although the Act failed to authorise the Secretary of State to give a lead in this area, the 1996 Guidance, when it turned to "main elements of the definition of disability" (paragraph 5), and despite its having a sub-heading of "Impairment" (paragraphs 10-15), did nothing to bar or to build upon an ordinary meaning being given to the words "physical impairment".
32. Nor does anything in the Act or the Guidance expressly require that the primary task of the ascertainment of the presence or absence of physical impairment has to, or is likely to, involve any distinctions, scrupulously to be observed, between an underlying fault, shortcoming or defect of or in the body on the one hand and evidence of the manifestations or effects thereof on the other. The Act contemplates (certainly in relation to mental impairment) that an impairment can be something that results from an illness as opposed to itself being the illness - Schedule 1 para 1 (1). It can thus be cause or effect. No rigid distinction seems to be insisted on and the blurring which occurs in ordinary usage would seem to be something the Act is prepared to tolerate. Nor is there anything there to be found to restrict the Tribunal's ability, so familiar to Tribunals in other parts of discrimination law, to draw inferences, although, of course, any Tribunal would need to be alive to the point that the need for a common reliance on inference for reasons such as those spoken of in King -v- G.B. China Centre [1991] ICR 516 at 528 will be unlikely to exist where all that is being considered is the presence or absence of physical impairment.
33. It was accordingly appropriate in our view, and not simplistic, for the Tribunal (using the language both of the Employment Tribunal itself in the case before us and the language of Rugamer) to ask itself whether there was evidence before it on which it could hold, directly or by ordinary reasonable inference, that there was something wrong with Dr Hobbs physically, something wrong with her body?
34. In our view the catalogue of symptoms and effects of symptoms which we have earlier described, unchallenged in the evidence, was sufficient, were there nothing to contrary effect, to allow the Tribunal to conclude, as it did, that there was physical impairment within the meaning of the Act. The manifestations were plainly describable as physical ("of the body; bodily, corporeal" - Shorter Oxford English Dictionary). Muscles twitched or went into spasm, cramps were suffered, the back and legs might give way and so forth. However, Dr Bates, towards the end of his report, had a section headed "Opinion" which read as follows:-

"I can find no evidence to indicate the presence of a disease affecting the central or peripheral nervous system to account for Dr Hobbs's described disability. I am re-assured by the normality of the investigations which she has undergone including MRI scanning and neurophysiology.

I have considered the possible diagnosis of a "post-virial fatigue syndrome" but the features which Dr Hobbs describes are not truly consistent with this diagnosis, nor are they indicative of the syndrome of fibromyalgia which is sometimes diagnosed by rheumatologists.

I am compelled to the belief that there is no organic disease process causing the symptoms described by Dr Hobbs and that her disability is not therefore organic. I am not competent to provide an opinion as to whether she has a significant psychological disability and it might be appropriate to seek an opinion from a consultant psychiatrist."

35. Dr Hobbs's solicitors's letters to Dr Bates had mentioned that the protection afforded by the 1995 Act extended only to those who are judged by the Employment Tribunal to be suffering from a "disability" as defined in the legislation and as clarified in statutory guidance notes. However, Dr Bates's report makes no reference either to the terms of the Act or to that guidance. As we have mentioned he was, unfortunately, not present at the hearing and hence was unable to amplify his report or be questioned upon it. Whether Dr Bates, in concluding that Dr Hobbs's disability was not "organic" was meaning to say that she had no "physical impairment" is far from clear. It might or might not be the case that medical men, having commented as Dr Bates had on the nervous systems, would, in general, inescapably move from a finding that a disability was not "organic" ("of or pertaining to the bodily organs" - Shorter Oxford English Dictionary) to a conclusion that there was no "physical impairment", but the point is far from obvious and remained unexplained. Had Dr Bates, mindful of the language of the Act, said in terms that there was no physical impairment, then difficulties would have arisen as to whether, given that evidence and its being uncontested, the Tribunal would have been able to hold otherwise than as that evidence would suggest - compare Kapadia -v- London Borough of Lambeth [2000] IRLR 699 C.A..
36. So long, however, as there is proper doubt as to whether, in the absence of evidence of any disease affecting the central or peripheral nervous system, an expert's belief or statement "that there is no organic disease process causing the symptoms" and that the disability "is not therefore organic" was necessarily evidence which excluded a finding of "physical impairment" within the Act, there was no necessary conflict between the expert's evidence and the Tribunal's conclusion. In our view that proper doubt could or did subsist as at 14th March 2000. Dr Bates could be expected to have said there was no physical impairment if that was what he meant. He did not say that. Accordingly, in our view, this was therefore not a case where a Tribunal came to a conclusion contrary to the expert and uncontested evidence laid before it. Rather the case was one in which the expert evidence did not plainly and conclusively answer the one question which needed answering and it left the Tribunal, to that extent, to its own devices. The Tribunal, so left, held:-

"... There are plainly manifestations of mechanical problems to do with the Applicant's muscle function in what she describes. We think that the dysfunction described by her is sufficient to bring her case within the expression of "physical impairment" and that it is not necessary for us to know precisely what underlying disease or trauma has caused the physical impairment."

A little later the Tribunal concluded that Dr Hobbs was suffering from a physical impairment which had a substantial and long-term effect adverse effect on her ability to carry out normal day-to-day activities. Given manifestations which were describable as physical and given the absence of expert evidence that Dr Hobbs's condition or symptoms were either not "physical" or amounted to mental impairment or that what was wrong with her was something mental, the Tribunal was, in our view, entitled, if only by inference, to conclude as it did on the evidence it had received. Its conclusion was a permissible option.

37. Less doubt would have surrounded Dr Bates's meaning had he been available to supplement or explain his written report and it may be that had a consultant psychiatrist given evidence a different picture would have emerged. Unfortunately, the decision to persist with a hearing on 14th March 2000, a hearing without Dr Bates and without psychiatric evidence, left the Tribunal, when it came to making its decision, having to make the best it could of the inadequate material which earlier rulings had procured should be laid in front of it. However, limiting ourselves to what is truly the question before us, we cannot, in the circumstances we have described, find error of law in the Tribunal's conclusion. Accordingly we dismiss the appeal.