United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PETER WARD (of Counsel) Instructed by: Messrs Fisher Meredith Solicitors 2 Binfield Road Stockwell London SW4 6TA
For the Respondent	MISS LYDIA SEYMOUR (of Counsel) Instructed by: London Borough of Islington Law & Public Service Department Townhall Upper Street London N1 2UD


 


HIS HONOUR JUDGE ANSELL

1. This is an appeal with the leave of a Preliminary Hearing, Ms Recorder Cox QC (as she then was) presiding, against a decision of an Employment Tribunal held at London (Central on 7 February 2002, who unanimously decided that the Appellant was not a disabled person within the meaning of section 1 of the Disability Discrimination Act 1995 and her claim for discrimination was therefore dismissed.
2. The Appellant had worked for Islington Council since 1986. In 1993 she sustained a back injury in a motor accident. She was a driver in a stationary vehicle and was hit from behind. Her case is that since that time she has suffered from the effects of that injury, so-called whiplash effects; particularly chest pain and right shoulder pain.
3. Her claim for disability discrimination was initially based on a failure to make adjustments. Her first claim was issued on 9 November 2000 and the alleged date of discrimination was 31 July 2000. She issued a subsequent claim, again based on a failure to make adjustments, and the date of that alleged discrimination was 5 February 2001. She was eventually dismissed on 21 June and that dismissal gave rise to the third claim which was issued in July 2001.
4. The decision of the Tribunal, which if we may say so set out these matters in considerable detail, went into the three aspects of proving a case under section 1. Section 1 states that a person has a disability:

(1) "…if he or she 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."

5. They went over the three areas. First of all, one of impairment where they found in the Appellant's favour. The issue of whether the impairment was long-term, again was found, on balance, in the Appellant's favour. But it was the third aspect which gives rise to this appeal, namely whether there was a substantial adverse affect on her ability to carry out normal day-to-day activities. Having heard their evidence and considered the medical reports that were in front of them, they were not satisfied that she had made out that part of the case and in particular they were not satisfied that on balance she was suffering from the difficulties that they had set out in that section of their decision, some ten or so difficulties that she had alleged.
6. They had based that decision, particularly, on inconsistencies that they had identified in the history that she had narrated; inconsistencies between what she had told various doctors and what evidence that she had given. Further, the Tribunal had concerns about evidence that she had given in relation to how she got to work and the use of a bus. They had described those inconsistencies, some as major and some as minor; but it was certainly those inconsistencies, coupled with the lack of corroboration of her physical difficulties, that caused the Tribunal to come to a decision on that part of the case.
7. The appeal today is under two main heads and we shall consider them separately.
8. First of all, it is said that the Tribunal's decision and the language that was used under the Adverse Effect section gave the clear impression that the Tribunal were judging the case as at the date of the hearing (which was, as I have said, in February 2002), rather than at the date of the alleged discrimination. It is not suggested that there was any material difference between her condition at the three dates that the Tribunal should have considered as the dates of discrimination.
9. In particular, we have been referred to Cruickshank v V A W Motorcast Ltd [2002] IRLR 24, where this court has made it clear that the time at which the Tribunal has to assess disability is the date of the alleged discriminatory acts, not the date of the hearing; and that is well-known and accepted law. The Cruickshank case in its facts concerned a situation where there had been an improvement in the Applicant's condition by the time of the hearing, and the Tribunal had to consider (or should have considered) his condition at the time of the discrimination as it was or was not affected by his working environment.
10. However, this is not that sort of situation. We remind ourselves that this was a case where, quite clearly on the Tribunal's decision, there was no substantial difference in her medical condition over a considerable period of time. Nothing had been identified in the medical reports as giving rise to a difference in her condition, particularly as between the date of dismissal (which was only six or seven months before the hearing date) and the date of hearing. There was a consistent picture throughout, of course relating back to an injury that had occurred as long ago as 1993.
11. Moreover, we have now seen a copy of the Appellant's statement of July 2001 that was before the Employment Tribunal. The very last section, which relates to her personal difficulties, is very much in line with those matters that the Tribunal referred to when setting out this lady's difficulties. Indeed, there is virtually a word-for-word repetition of that section of her statement in the Adverse Effect section of the decision. So, quite clearly, the Tribunal very much had in mind her condition as it was set out in July 2001 which was, of course, very near the date of the last act of discrimination; only a few weeks after dismissal on 21 June.
12. Had there been a difference identified in either medical reports or in evidence, then quite clearly the Tribunal should have taken that matter into account; but no difference was ever identified. Indeed it does not seem that the issue was ever raised before the Tribunal alerting them to consider the difference. The case was presented as ongoing and consistent picture over quite a few years and that is how the Tribunal, in our view, correctly approached the matter.
13. The second ground relates to the manner in which they have used their findings as to inconsistencies to come to a decision on adverse effects. The way the matter is now put to us (although it was not in a manner in which it was put, we believe, to the Tribunal) was that the inconsistencies were effectively as a result of this lady's medical condition, and that is a factor the Tribunal should have identified and therefore should have taken into account before drawing adverse conclusions against her in the final part of their decision.
14. Apart from the fact that this was not an issue which was put before the Tribunal in that way, when one looks at the various inconsistencies, save for possibly one, they are not inconsistencies that arise from a variation in her condition, but in fact arise from the fact that she has related different things to different people about the same event. She has, for example, alleged that she told a doctor about a particular facet of her condition, whereas a doctor has said that he was not told about that condition.
15. Within that paragraph of the decision (paragraph 2) they have identified under five separate heads substantial differences, inconsistencies within the Applicant's evidence. For example, the first inconsistency is that within her IT1 there is a reference to weakness in her knees, and yet this was only a few days after she had seen the consultant and had not mentioned any problems with her knees of difficulty in bending or reaching. The consultant made reference to the fact that this lady had complained to him that if she had to stand for more than 30 minutes in a day a problem was caused. In her evidence she said it was standing for 30 minutes at a time which caused difficulty. Dr Smith, the other doctor, had identified that the Applicant had not mentioned shoulder pain to her before June 2001. In her presented case she had said that she had told Dr Smith about it. Finally, the detailed consideration that the Tribunal gave to her evidence about her problems in walking to work as opposed to walking to a tube station.
16. The Tribunal, in our view, were perfectly entitled to come to the view, as they did, that these were serious inconsistencies, describing them, as I have said, "some of these are major and some are minor." They went on to say this:

2 "They do however cause the Tribunal concern because the Applicant has made errors in the presentation of her case which, even if innocent, must throw doubt upon other parts of her evidence. We will return to this matter later"

They then use those inconsistencies as part of their decision-making process in relation to Adverse Effect.

17. They remind themselves that although one of the specialists had indicated that the Applicant might have difficulty in some of these matters, he conceded within evidence given before the Tribunal that he was merely repeating what the Applicant had said and was therefore not true corroboration. They go on to say that the "impression of the Applicant was that she was endeavouring to be an honest and accurate witness", but they then set out the inconsistencies leading them to the conclusion that we have already set out.
18. We can see no criticism in the Tribunal's approach. Indeed, this was a very careful and reasoned decision where the Tribunal were clearly doing their very best to assess the evidence before them. We can see no perversity in the approach that they took, which is to use what they regarded as serious inconsistencies as a balance within the process in dealing with adverse effects. We would accordingly dismiss this appeal.