At the Tribunal | |
On 23 January 2004 | |
Before
HIS HONOUR JUDGE ANSELL
MR D EVANS CBE
MR D SMITH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR P EPSTEIN (of Counsel) Instructed by: Disability Rights Commission 2nd Floor, Arndale House Arndale Centre Manchester M4 3AQ |
For the Respondents | MR T BRENNAN QC (of Counsel) Instructed by: Messrs Hammond Solicitors Trinity Court 16 John Dalton Street Manchester M60 8HS |
HIS HONOUR JUDGE ANSELL
" - is persistently unable to remember the names of familiar people such as family or friends;
- is unable to adapt after a reasonable period to minor change in work routine."
"3. This disability has a substantial effect on my normal day-to-day activities, particularly in the following ways:
a) The disability makes it hard for me to make and keep friends and to have intimate relationships, which leaves me deprived of the normal levels of support that contact with people can bring. Most of my life is spent as a solitary existence.
b) The disability leaves me largely excluded from being part of the normal dynamics which exist between people, often causing isolation, exclusion and also rejection by others. I need to constantly remind myself of the existence and needs of others, which uses energy and leads to me being more susceptible to hitting my personal stress limit when relating with others.
c) The disability makes interactions with others, particularly with people I've not met before, and groups of people where there are many dynamics involved between the individuals, highly stressful. These are situations which I dread and it takes considerable effort to overcome the urge to avoid these situations altogether. Trying to control the urges to avoid involvement and instead to listen and absorb what someone is saying often reduces my ability to pay attention to what is being said. People often get the impression that I am being rude and/or ignorant and this contributes significantly to the cycle of exclusion and rejection.
d) Because of the stress associated with my disability, stressful situations in the workplace have caused me to be unable to concentrate on my work and I have been on sickness absence as a consequence of not being able to perform my duties.
e) Because of the isolation that my disability imposes, I find it necessary to use counselling services on a weekly basis. This provides my one regular and reliable contact with another person, and with someone who also is able to understand and tolerate the effects of my disability so that I need not fear that the relationship will be destroyed by the effects of it. I have used weekly counselling since September 1993"
"I would say that he probably conforms to a diagnosis of Asperger's Syndrome"
That report suggested that he was particularly well suited to working in the electronics industry, but made him a rather difficult man to manage or to integrate within the organisation as a whole, and suggested that he might require special assistance in relation to his management. Dr Wilkins suggested that a clinical psychologist would be a benefit to Mr Hewett, rather than unstructured counselling. The evidence before the Tribunal was that Mr Hewett had been seeing a counsellor every week for the last five years. Dr Muir, Mr Hewett's General Practitioner, in a report dated 17 January 2003, confirmed that he had seen Dr Wilkins' report and confirmed the diagnosis. In his view the key characteristics of the disorder included:
"(1) Difficulty of social relationships.
(2) Difficulty with communication.
(3) Special interests."
Dr Muir set out that Mr Hewett found that certain situations requiring human interaction caused him stress, fatigue and mental pain and he continued as follows:
"He finds it hard to understand non-verbal signals and "coded messages", including facial expressions, aspects of human interaction which for the majority of us are instinctive"
"Timothy's problems with social relationships and communication can lead to a problem in concentrating and paying attention to what is said, particularly if instructions involve human assumptions and coded messages. He regards himself as a "team player" and indeed wants to be a "team player", but only thrives when emotional overtones and coded messages are kept to a minimum. He can easily feel like an outsider."
Dr Muir said that this had had a serious effect on Mr Hewett which is more than minor or trivial, and that he had become socially isolated with few friends and no workmates, a characteristic of people with Asperger's Syndrome. Dr Muir found that the effects were long-term and had lasted more than twelve months.
"Were Mr Hewett expected to socialise, take part in small talk, initiate and sustain conversations, answer questions in a reciprocal manner, expected to form and maintain relationships at a level beyond the concrete tasks that sustain him, manage people or lead a team, he would very likely, be inept. People with autistic traits are socially inept to a varying degree. They have some primary social deficits; they are inflexible, unyielding and stubborn. However, were his duties to be solitary, not requiring social interaction at a subtle level, clearly outlined and communicated in concrete, non ambiguous terms, and were he allowed to use his initiative and inventiveness, he should not have much difficulty."
His conclusion was:
"It is my view that his condition has had a mild effect on his day-to-day activities but that at times of stress, it would have had a more moderate effect. Those effects would last more than twelve months". "
"20 In respect of memory or ability to concentrate, learn or understand. The tribunal finds that on occasions the applicant may have had his ability to concentrate impaired to some extent by the difficulty he faced in social interaction. He explained that when he had to have a meeting with someone, he would have to pluck up his courage to go and see them and this could affect his ability to concentrate. He said that particularly when he was stressed, his mind went blank. However, the tribunal does not find that such impairment was substantial. The respondent's evidence was that in his work Mr Hewett showed an ability to communicate effectively, could remember names and facts, could adapt to changes in work routine and it was plain from his work record that he had worked effectively in quite technically difficult jobs over a number of years.
21 The difficulties between Mr Hewett and his employers highlighted in the email communications before the tribunal appeared to relate to communication problems and social interaction. The tribunal notes that these were the matters highlighted by Dr Muir in his report. The tribunal accepts the evidence of Mr Hewett in this connection and that this aspect of the effect of his condition upon social relationships and relationships with colleagues caused him distress and difficulty. However, the tribunal is constrained by the specific factors set out in Schedule 1 to the Act, which do not include social interaction or communication. For the reasons stated above the tribunal do not conclude that the impact those difficulties had on Mr Hewett's ability to concentrate was substantial. Indeed Mr Hewett was highly articulate and effective in the giving of his evidence before the tribunal.
22 Conclusion:
The tribunal therefore concludes that Mr Hewett suffered from the condition set out by Dr Myttas in paragraph 3,(ii) of his report. The conditions as set out by Dr Myttas are clinically well-recognised. The effect on Mr Hewett was long-term. It undoubtedly had an adverse effect as set out particularly in Dr Muir's report on his ability to participate in human interaction, social relationships and communication. However, those are not matters listed in paragraph 4 of schedule 1 DDA 1995 and therefore, not matters the tribunal is able to take into account. The tribunal does not find that the condition from which Mr Hewett suffered had a substantial and long-term effect on his ability to carry out normal day-to-day activities by reference to those matters set out in paragraph 4 of Schedule 1 to the Act."
The Law
Section 1(1) of the Disability Discrimination Act 1995 provides that:
"1 (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.
4. - (1) An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following-
(a) mobility;
(b) manual dexterity;
(c) physical co-ordination;
(d) continence;
(e) ability to lift, carry or otherwise move everyday objects;
(f) speech, hearing or eyesight;
(g) memory or ability to concentrate, learn or understand; or
(h) perception of the risk of physical danger.
Section 3 of the Disability Discrimination Act 1995 provides that:
"3. (1) The Secretary of State may issue guidance about the matters to be taken into account in determining-
(a) whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities; or
(b) whether such an impairment has a long-term effect.
(2) The guidance may, among other things, give examples of-
(a) effects which it would be reasonable, in relation to particular activities, to regard for purposes of this Act as substantial adverse effects;
(b) effects which it would not be reasonable, in relation to particular activities, to regard for such purposes as substantial adverse effects;
(c) substantial adverse effects which it would be reasonable to regard, for such purposes, as long-term;
(d) substantial adverse effects which it would not be reasonable to regard, for such purposes, as long-term.
(3) A tribunal or court determining, for any purpose of this Act, whether an impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance which appears to it to be relevant."
"Memory or ability to concentrate, learn or understand
C20 Account should be taken of the person's ability to remember, organise his or her thoughts, plan a course of action and carry it out, take in new knowledge, or understand spoken or written instructions. This includes considering whether the person learns to do things significantly more slowly than is normal. Account should be taken of whether the person has persistent and significant difficulty in reading text in standard English or straightforward numbers.
Examples
It would be reasonable to regard as having a substantial adverse effect -
• intermittent loss of consciousness and associated confused behaviour;
• persistent inability to remember the names of familiar people such as family or friends;
• inability to adapt after a reasonable period to minor change in work routine;
• considerable difficulty in following a short sequence such as a simple recipe or a brief list of domestic tasks.
It would not be reasonable to regard as having a substantial adverse effect -
• occasionally forgetting the name of a familiar person, such as a colleague;
• inability to concentrate on a task requiring application over several hours;
• inability to fill in a long, detailed, technical document without assistance;
• inability to read at a faster than normal speed;
• minor problems with writing or spelling."
"(6) If any provision of a code appears to a tribunal or court to be relevant to any question arising in any proceedings under this Act, it shall be taken into account in determining that question"
Paragraph 4.58 of the Code provides that:
"In some cases a reasonable adjustment will not work without the co-operation of other employees. Employees may therefore have an important role in helping to ensure that a reasonable adjustment is carried out in practice.
It is a reasonable adjustment for an employer to communicate in a particular way to an employee with autism (a disability which can make it difficult for someone to understand normal social interaction among people). As part of the reasonable adjustment it is the responsibility of that employer to seek the co-operation of other employees in communicating in that way."
"The tribunal should bear in mind that with social legislation of this kind, a purposive approach to construction should be adopted. The language should be construed in a way which gives effect to the stated or presumed intention of Parliament, but with due regard to the ordinary and natural meaning of the words in question. With this legislation, tribunals are given explicit assistance in two forms, which should detract from the need to adopt a loose construction of the language.
- Guidance issued on 25 July 1996 under s.3 of the Act by the Secretary of State (Statutory Instrument No 1996/1996) with statutory effect from 31 July 1996; and
- Code of Practice issued on 25 July 1996 but with statutory effect from 2 December 1996."
"26
(1) The impairment condition
Does the applicant have an impairment which is either mental or physical?
27
(2) The adverse effect condition
Does the impairment: affect the applicant's ability to carry out normal day-to-day activities in one of the respects set out in para 4(1) of Schedule 1 to the Act, and does it have an adverse effect?
28
(3) The substantial condition
Is the adverse condition (upon the applicant's ability) substantial?
29
(4) The long-term condition
Is the adverse condition (upon the applicant's ability) long-term?"
At paragraph 35 Morison P said thus:
"The focus of attention required by the Act is on the things that the applicant either cannot do or can only do with difficulty, rather than on the things that the person can do. The Act is looking to see whether the capacities listed in para 4(1) have been affected. These capacities are those which will be required, to a greater or lesser extent, to carry out normal day-to-day activities, whether at home or at work."
At paragraph 40 he defines the term "substantial" as meaning more than minor or trivial. Finally, at paragraph 42 of the Decision Morison P considered the effect of medical treatment - the so-called "deduced" effect, setting out the position thus.
"The tribunal will wish to examine how the applicant's abilities had actually been affected at the material time, whilst on medication, and then to address their minds to the difficult question as to the effects which they think there would have been but for the medication: the deduced effects. The question is then whether the actual and deduced effects on the applicant's abilities to carry out normal day-to-day activities is clearly more than trivial."
"26 As to the function of the tribunal it was submitted that it should adopt an inquisitorial and more proactive role in disability discrimination cases, as they can be complex and involve applicants, whose impairment leads them to minimise or to offer inaccurate diagnoses of their conditions and of the effects of their impairment. I do not think that it would be helpful to describe the role the employment tribunal as "inquisitorial" or as "proactive". Its role is to adjudicate on disputes between the parties on issues of fact and law. I agree with the guidance recently given by Lindsay J in Morgan v Staffordshire University [2002] ICR 475, 483, para 20. The onus is on the applicant to prove the impairment on the conventional balance of probabilities. In many cases there will be no issue about impairment. If there is an issue on impairment, evidence will be needed to prove impairment. Some will be difficult borderline cases. It is not, however, the duty of the tribunal to obtain evidence or to ensure that adequate medical evidence is obtained by the parties. That is a matter for the parties and their advisers. Sensible and sensitive use of the tribunal's flexible and informal procedures and its case management powers enable it to do justice on this issue by reminding the parties at the directions hearing of the need in most cases for qualified and informed medical evidence, bearing in mind that an unrepresented person may need some explanation about what is involved and what is required and also bearing in mind the cost of obtaining such."
"I would add this. In any deduced effects case of this sort the claimant should be required to prove his or her alleged disability with some particularity. Those seeking to invoke this peculiarly benign doctrine under para 6 of the schedule should not readily expect to be indulged by the tribunal of fact. Ordinarily, at least in the present class of case, one would expect clear medical evidence to be necessary."
Accordingly, we can find no fault on the part of the Tribunal on this aspect of the case.
(1) Whilst both the IT1, and to a certain extent, Mr Hewett's witness statement were drafted in quite general terms, there was clear evidence before the Tribunal from both Dr Muir and Dr Myttas, regarding Mr Hewett's difficulties in understanding the more subtle aspects of human interaction. We have already referred to Dr Muir setting out Mr Hewett's difficulties in understanding non-verbal signals and coded messages, and Dr Myttas' evidence referred to the clear necessity for matters to be outlined and communicated to Mr Hewett in concrete non-ambiguous terms, from which we infer that were matters not communicated in that way, Mr Hewett would have difficulty in understanding them. Dr Myttas' report ended up with the conclusion that Mr Hewett did have mild difficulties in understanding the subtleties of human non-factual communication.
(2) Despite the clear guidance from the authorities, particularly Goodwin, that Tribunals in construing the language of this Act should consider both the guidance and the Code of Practice; there is no reference in this Tribunal's Decision to the Code of Practice, and particularly to paragraph 4.58, wherein the Code appears to acknowledge that autism, meaning a disability which can make it difficult for someone to understand normal social interaction among people, clearly falls within the scope of the Act.
(3) The purposive approach to construction, now suggested for all employment legislation, particularly the Disability Discrimination Act, leads us to take this broad approach to the concept of "understanding".
(4) Whilst the Guidance refers to understanding in terms of, for example, understanding, spoken or written instructions, it does refer to account being taken of the person's ability to "take in new knowledge". In this case, there was clear evidence, particularly from Dr Myttas, that if knowledge was not outlined to him in clear and concrete non-ambiguous terms, he might have difficulty in understanding it or appreciating it.
(5) The issue of understanding which the Tribunal should have addressed did not require them to adopt an inquisitorial approach within this case. The general material had been placed before them within the Appellant's own witness statement, and as we have indicated above, the particular difficulties were clearly articulated in at least two of the medical reports.