United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS CAROLINE CARR (of Counsel) Instructed by: Messrs Brechin Tindal Oatts Solicitors 48 St Vincent Street Glasgow G2 5HS
For the Respondent	MR RICHARD HOOKS (of Counsel) Instructed by: Messrs Meade King Solicitors 11-12 Queen Square Bristol BS1 4NT


 


JUDGE PETER CLARK

1. The real question in this appeal, by the employer Fyffes Group Ltd, is whether by their Decision with Extended Reasons promulgated on 6 August 2001, following a preliminary hearing held on 12 July, a Tribunal sitting at Bristol adequately explained why they had concluded that the Applicant, Mr Bazley, was at the relevant times disabled within the meaning of section 1 of the Disability Discrimination Act 1995 for the purposes of bringing his claim of disability discrimination under that Act.
2. The Applicant was employed by Fyffes as a supervisor from 22 October 1990 until his resignation effective in November 2000. He was then aged 56 years. That work involved walking about their fruit packing plant, driving a forklift truck and sometimes lifting 40lb boxes of bananas.
3. He had something of a medical history. Two matters were relevant. First, he had a long history of osteoarthritis in both hips. He consulted his General Practitioner in August 1996 complaining of hip pain and stiffness. As a result a left total hip replacement was performed in November 1997 and in January 1998 a similar operation was performed on the right. There was some shortening of the left leg for which he wore a shoe raise. Secondly, he sustained a fracture of the left elbow which was treated by open reduction and internal fixation. He was off work as a result of the elbow injury until 22 May 2000.
4. Following his return to work Fyffes wished to alter the shift system at the plant so that, in the case of the Applicant, his working week would be increased from 38.5 hours to 45 hours. He resigned from the employment on 8 November 2000, thereafter complaining to the Employment Tribunal of unfair constructive dismissal and of a failure to make reasonable adjustments contrary to section 5(2) and 6 of the Disability Discrimination Act 1995. The claim of disability discrimination was resisted, among other grounds, on the basis that the Applicant was not disabled within the meaning of the Act; the issue of disability was tried as a preliminary issue.
5. The Tribunal heard evidence from the Applicant himself and a Consultant Orthopaedic Surgeon, Mr Wand, called on behalf of Fyffes. There was also before the Tribunal a report from the Applicant's General Practitioner, Dr Norman, dated 22 March 2001. Dr Norman was not called to give oral evidence. Mr Ward had earlier prepared a report dated 23 June 2001, having examined the Applicant on that day. Section 1 DDA required the Tribunal to consider four questions in this case:

(1) did the Applicant have a physical impairment? If so,

(2) did that impairment adversely affect his ability to carry out normal day to day activities in one or more of the respects set out in Schedule 1, paragraph 4(1) of the Act (those include, among other things, mobility, manual dexterity and ability to lift, carry or otherwise move everyday objects), if so

(3) is the adverse effect substantial, that is more than minor or trivial

(4) is the adverse effect long-term? See Goodwin -v- The Patent Office [1999] IRLR 4.

6. In determining the second question it is necessary to focus on what the Applicant cannot do or can only do with difficulty, not what he can do. See Leonard -v- Southern Derbyshire Chamber of Commerce [2001] IRLR 19. The Tribunal should take into account any relevant provision of the guidance issued by the Secretary of State, stating that they have done so, whilst bearing in mind that the Guidance, particularly examples there given, should not be regarded as an extra hurdle to be cleared by the Applicant in establishing that he is disabled.
7. Against that background we turn now to the way in which this Tribunal dealt with those four questions and the challenges to their approach raised in this appeal.

(1) Physical impairment

The Tribunal, at paragraph 5 of their Reasons, found that the Applicant had physical impairments, namely a restriction in flexion of the left arm and residual discomfort from his bilateral hip replacements, particularly on the left. This aspect of the statutory enquiry was conceded by Mr Speirs then appearing on behalf of Fyffes.

(2) Adverse effect

Miss Carr, who appears on behalf of the employer in this appeal, submits that in reaching the conclusion, in paragraph 6 of their Reasons, that the physical impairment had an adverse effect on the Applicant's day to day activities the Tribunal's Decision was flawed in two respects; first, the Tribunal failed to make clear findings of primary fact and to resolve conflicts in the evidence, secondly they have failed to explain their reasoning by which they reached their conclusion on this issue.

The classic statement of a Tribunal's duty to give reasons for its decision remains the formulation by Lord Justice Bingham, as he then was, in Meek -v- Birmingham District Council [1987] IRLR 250, paragraph 8:

"It has on a number of occasions been made plain that the decision of an Industrial [Employment] Tribunal is not required to be an elaborate formalistic product of refined legal draftmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises;"

That formulation has been recently repeated and endorsed by Lord Justice Peter Gibson, giving the judgment of the Court of Appeal, in Miriki -v- General Council of the Bar [2001] EWCA Civ 1973.

We have also been referred to Tran -v- Greenwich Vietnam Community [2002] IRLR 735, in which the adequacy of the Tribunal's reasons did not strictly arise for consideration because that point had not been taken below.

Applying that guidance to the Reasons in the present case we begin with the Tribunal's findings of primary fact. Purely as a matter of style, criticism may be made of the Tribunal's approach at paragraph 3 of their Reasons, which is set out in sub-paragraphs, under the heading "We make the following findings of fact"; the Tribunal then set out passages from the evidence which they heard or read. The difficulty with that approach is that the reader may be left with the impression that the Tribunal has left unresolved material conflicts of evidence.

Turning to the substance of the findings we consider, in this case, that such criticism is more theoretical than actual. The real dispute between Mr Wand and the Applicant was as to the degree of difficulty experienced by the Applicant in carrying out day to day activities. A comparison of the difficulties related by the Applicant and set out at paragraph 3(f) of the Reasons, and the observations of Mr Wand recorded at paragraph 3(g), reveals a considerable degree of common ground. Mr Wand accepted that the Applicant would not be advised to climb ladders and that he experienced discomfort or difficulty in using some implements and, for example, putting on his socks. That fits in broadly with the Applicant's account of how he was affected in carrying out a range of day to day activities. Subject to the extent to which he was affected that degree of common ground emerges from the Tribunal's findings read as whole.

Similarly, whilst the Tribunal does not spell out in paragraph 6 of the Reasons how the Applicant was affected by reference to the list contained in paragraph 4.1, Schedule 1 to the Act it is we think significant that at paragraph 3(d) the Tribunal specifically record a passage in the General Practitioner's report which refers to mobility, manual dexterity and ability to lift and carry everyday objects. Thus, reading the Tribunal's Reasons as a whole, and in particular paragraphs 3(d) (f) (g) and 6, it is clear to us, as we think it is to the parties, that the Tribunal has found that the Applicant can only carry out the day to day activities recorded at paragraph 3(f) with a degree of difficulty, and that affects, variously his mobility, manual dexterity and ability to lift and carry or move everyday objects (for example shopping). Thus the second statutory question is answered in the affirmative.

(3) Substantiality

This question is dealt with at paragraph 7 of the Tribunal's Reasons. They were satisfied that there was a degree of exaggeration in the Applicant's account of the difficulties which he encountered, thus accepting to some extent the reservations expressed by Mr Wand. However, on the question as to whether the Applicant passed the threshold of a greater than minor or trivial adverse effect their judgment was that he had. That is essentially a question of fact and degree to be judged by the Tribunal. They have adequately expressed their finding on this issue.

(4) Long term

Having answered the first three questions in favour of the Applicant, and given Mr Wand's opinion expressed at paragraph 7.2 of his report, that no change in the Applicant's hip condition or elbow condition would occur in the foreseeable future, the Tribunal had no difficulty in finding that the effects were long term and said so.

It follows that, without having to fill missing elements in the Tribunal's Reasons, we have concluded that the Tribunal's Reasons adequately tell the parties why they have won or lost. That being the real question which we have to determine in this appeal, a perversity argument having been dismissed at the earlier preliminary hearing, we shall dismiss this appeal.