United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr J Barker, Solicitor Of- Messrs Richmond Anderson Goudie Flake Cottages Cone Terrace CHESTER LE STREET DH3 3QH
For the 1st Respondent For the 2nd Respondent	Mr A Sutherland, Solicitor Of- Messrs Maclay Murray & Spens Solicitors 3 Glenfinlas Street EDINBURGH EH3 6AQ Mr E Smith, Solicitor Of- Messrs McGrigors Solicitors Princes Exchange 1 Earl Grey Street EDINBURGH EH3 9AQ

SUMMARY
DISABILITY DISCRIMINATION

Disability

The EAT could not interfere with a decision of the Employment Tribunal that a Claimant was not disabled within the meaning of the DDA 1995. Although the ET did not in terms say that it had considered the effects of his disabilities cumulatively it was clear from the judgement as a whole that it had done so.


 


HIS HONOUR JUDGE SEROTA Q.C.:

1. This is an appeal from a judgment of the Employment Tribunal at Edinburgh (K J McGowan Esq Chairman) entered onto the Register on 16 July 2004. The Employment Tribunal held the Claimant was not disabled within the meaning of the Disability Discrimination Act 1995 ("The Act"). The appeal was originally disposed of by the Deputy Registrar under Rule 3 of the Employment Appeal Tribunal's Rules of Procedure but an appeal against that decision was allowed by Lord Johnston on 14 December 2004. Lord Johnston referred the matter to a full hearing on 24 January 2005
2. We now refer to the factual background which we gratefully take from the judgment of the Employment Tribunal. The Claimant was diagnosed in 1996 as suffering from Hepatitis C. At the time of this diagnosis he was said to have difficulties with temperature control, pain and fatigue which prevented him from carrying on a very active lifestyle. His condition had deteriorated up until 2002. He suffered increasing joint and muscle pain and increased fatigue. His medication increased. There were other changes; he experienced greater difficulty in climbing stairs, he suffered pain in the knee and the hip. Walking or running tired him and he virtually had to give up his hobby of running and cycling by the end of 2000. He noted increased frequency of his use of the toilet. He suffered some difficulty in shopping because of discomfort carrying shopping bags which affected the circulation in his fingers. His handwriting deteriorated and he had difficulties in using his motorcycle, thereby limiting its use. His concentration and memory deteriorated and he suffered weight loss. This, it is said led to depression. He also suffered from jaundice and diminished tolerance of alcohol which caused him to give up alcohol altogether some time in 2003.
3. In October 2000 the Claimant was employed by the second Respondent Manpower ("Manpower") and assigned to work for the first Respondent IBM ("IBM"). At no time did he disclose to either Manpower or IBM until he went off sick in October 2002 that he was suffering from Hepatitis C. Neither did he complain about any inability to deal with his work nor did he display any symptoms or difficulties with his day-to-day activities. The Claimant's work performance always appeared to be good. The reason he did not tell either Manpower or IBM before October 2002 of his illness was because he was concerned he might face a discrimination backlash. In May 2002 the Claimant was temporarily assigned by IBM as Team Leader of a team working at the Bank of Scotland in Edinburgh. In October 2002 he was unable to work through sickness. He consulted his GP, Dr Langlands and his colleagues on some six occasions over the next three months. He maintains that as from November 2002 he was discriminated against on the grounds of his disability.
4. By 15 December 2002 the Claimant was considering a return to work. Dr Langlands expressed the view that the Claimant's symptoms would wax and wane over time. The Claimant did not seek extended breaks or complain that he had difficulty in coping with his work.
5. On 12 March 2003 he issued his originating application against Manpower and on 14 May 2003 IBM was added as a respondent. There was a delay in hearing the Claimant's claim by reason of his ill-health and the hearing took place in due course on 11 December 2003 and 22 and 23 June 2004. The decision of the Employment Tribunal was notified to the parties on 23 June 2004 but the judgment was not completed until 13 July and entered on the Register on 16 July 2004. The Notice of Appeal followed on 26 August 2004. On 11 October 2004 the Claimant applied to amend his Notice of Appeal by adding a ground (4). This was opposed by the Respondents. At the ex-parte hearing before Lord Johnston on 18 November 2004 the Claimant proposed to make a further amendment by adding a ground (5). On 14 December 2004 Lord Johnston ordered that the question of allowing the amendments be considered at the hearing of the appeal. We note that on 10 February 2005 the Claimant applied to adduce fresh evidence, an application opposed by both Respondents. This application was refused on 22 April 2005.
6. We now turn to consider the judgment of the Employment Tribunal. The Employment Tribunal set out the factual background to which we have referred and set out the submissions on the facts made by the Claimant Manpower and IBM. In order to establish that he was disabled within the meaning of the Act the Claimant was required to prove that he had a physical or mental impairment which had a substantial and long term adverse effect on his ability to carry out normal day to day activities. We shall come shortly to the relevant provisions of the Act and statutory guidance. Having reviewed the submissions of the parties the Employment Tribunal directed itself that a number of questions arose for consideration. The first question was:-

"63. ……………. taking the applicant's evidence at its highest, can it be said that there were substantial adverse effects on his ability to carry out day to day activities?

64. If the answer to that is 'yes', we will then consider whether the effect(s) can be said to be long-term, all as defined in Schedule 1 of the 1995 Act."

The Employment Tribunal then went on to consider the alleged effects of the Claimant's illness upon a number of specific activities. These are among those specifically referred to in the first schedule to the Act and are also those specifically referred to in an order for further and better particulars which is not dated and to which we shall come shortly. We understand that this approach was adopted by the Employment Tribunal in response to the way in which the Claimant made his submissions through his solicitor, Mr Barker. The Employment Tribunal firstly considered the issue of mobility. Two specific matters were considered, climbing stairs and motorcycling. So far as climbing stairs was concerned the Employment Tribunal noted that the Claimant's case was not that he could not climb stairs but his ability to do so was inhibited in particular circumstances. It was not suggested that this inhibition arose on all occasions or even frequently and the Employment Tribunal considered "that an inhibition which might arise only very rarely does not amount to a qualifying adverse effect given the terms of C14 of the Guidance." (We shall refer to the Guidance later but it is the Guidance issued by the Secretary of State in accordance with section 3 of the Act.) The Employment Tribunal did not consider that inability to use a particular type of vehicle was a substantial adverse effect given the terms of C14 of the Guidance particularly when the Claimant remained able to undertake fairly lengthy journeys even in September 2002.

7. The Employment Tribunal then went on to consider manual dexterity. It considered control of the motorcycle and writing. In relation to control of the motorcycle the Claimant did not say he could not use his motorcycle controls but claimed that his ability to do so was restricted and could be painful. The Employment Tribunal did not consider this amounted to a substantial adverse effect given the terms of C15 of the Guidance. The Claimant did not say he could not write but that his handwriting became "noticeably messier" and he could still in any event use a keyboard. The Employment Tribunal did not consider this to be a substantial adverse effect given the terms of C15 of the Guidance.
8. The Employment Tribunal then went on to consider the Claimant's ability to lift, carry or otherwise move everyday objects. It made particular reference to desktop computers and monitors, which the Claimant said he had difficulty in moving. The Employment Tribunal having regard to the items listed at C18 of the Guidance did not consider that a desktop computer or monitor could fairly be described as an everyday object. The Employment Tribunal went on to consider the Claimant's inability to carry shopping. This might be a substantial adverse effect but the Claimant's evidence was not that he could not carry shopping but he found that the weight round his fingers, such as groceries in plastic carrier bags, would cut the circulation to his fingers quite easily. The Employment Tribunal has this to say:-

"With respect to the applicant, we think that he is describing something which would happen to the majority of the population in like circumstances."

9. At paragraphs 71 and 72 the Employment Tribunal considered issues relating to memory or ability to concentrate, learn or understand, and focussed on the issue of concentration. The Claimant had maintained that his concentration and memory were slipping. The Employment Tribunal considered that the fact the Claimant found it more difficult to cope with multiple tasks or concentrate on single tasks for any length of time fell well short of the examples given in C20 of the Guidance particularly alongside unchallenged evidence that the Claimant did not at the time evince or report any difficulties with the intellectual demands of his job which he appeared to perform well.
10. The Employment Tribunal went on to consider that even if it was wrong in its evaluation of the first question that the Claimant had not demonstrated that his disability was long-term. As we shall see shortly a 'disability' within the meaning of the Act must be 'long term' (generally lasting at least 12 months). It accepted the submissions made by Mr Sutherland on behalf of Manpower and Mr Smith on behalf of IBM that the Claimant had given no evidence as to what his position was after November 2002 nor was there any evidence to support the contention that his symptoms had any material impact on his day-to-day activities as far back as November 2001. It could not be correct to infer that any adverse effects of his condition remained the same between November 2002 and the commencement of his treatment in 2003. Dr Langlands had said plainly that the symptoms would undergo "waxing and waning". There was, therefore, insufficient evidence to hold that the Claimant met the test of showing that he had a qualifying disability. The Employment Tribunal did not consider that Mr Barker had an answer to those submissions. He asserted that the Claimant's uncontested evidence invited the inference that the effects of which he was complaining had lasted for longer than a 12 month period. The Employment Tribunal found that that submission was not supported by the evidence "which was vague as to when prior to October these problems had begun to manifest themselves; and it does not meet at all the evidence of Dr Langlands who said that the symptoms would "wax and wane"."
11. The Employment Tribunal then had this to say at paragraph 74:-

"74 Although it was not challenged, we doubt the reliability of Dr Langlands' evidence on his conversation with Dr Kane in January 2002. We cannot see why the issue "day to day activities" would be being discussed then at all. It also appears to us to be inconsistent with Dr Kane's written description in the referral letter."

(We believe that the reference is to Dr O'Kane).

12. The Employment Tribunal then went on to make findings as to the credibility and reliability of the Claimant's evidence. It accepted the submissions made by Mr Sutherland and Mr Smith that the Claimant's credibility was "doubtful" throughout his evidence. There were conflicts and contradictions in his evidence; Dr Langlands had not seen him until October 2002 and when answering questions about the timing of symptoms Mr Sutherland had submitted the Claimant was "evasive and had to be pressed." Mr Smith drew specific attention to what he described as the "remarkable contrast" between the evidence given in the IT1, the response to the order for Further and Better Particulars (to which we shall come) and indeed the medical reports produced to date.
13. In his original "Statement of Case" the Claimant had stated that he suffered from Hepatitis C but that a new treatment was available which would last for some 12 months. This treatment was available in Nottingham earlier than in Edinburgh where he would have to wait for some 3 years before treatment could begin. He was advised by medical staff "that the longer the treatment is put off so the worse my condition will become so the poorer the prospects of success will be." His concern appeared to be that IBM and Manpower would not make "reasonable adjustments" to enable him to undergo the treatment in Nottingham. Nothing specific was said as to how the Hepatitis C affected his ability to carry out his normal day-to-day activities. The Employment Tribunal made an order requiring him to give Further and Better Particulars as to how his condition affected his ability to carry out the following normal day-to-day activities [evidently culled from the first schedule to the Act] :-

"1. Precise details of how the condition Hepatitis C affects the Applicant's ability to carry out the normal day to day activities:

(a) (a)                 mobility;

(b) (b)                 manual dexterity;

(c) (c)                  physical co-ordination;

(d) (d)                 continence

(e) (e)                 ability to lift, carry or otherwise move every day objects;

(f) (f)                  speech, hearing or eyesight;

(g) (g)                 memory or ability to concentrate, learn or understand or

(h) (h)                 perception of the risk of physical danger.

2. Details of any medical treatment currently prescribed for the Applicant and precise details of the extent to which any medication or treatment alleviates the symptoms of the condition.

3. Full details of the way in which the said condition has a substantial adverse effect on the Applicant's ability to carry out any of the above mentioned normal day to day activities."

The Claimant's answer to question 1 was as follows:-

"The Applicant suffers from Hepatitis C with a Type 1B Genotype. The illness makes the Applicant chronically tired, suffering joint pains in his spine and fingers.

Although is present prognosis without treatment was good, there is a significant risk of long term development of significant liver disease.

As a result of the treatment which he has been given at the Queens Medical Centre in Nottingham, his exhaustion has become even more acute. He has suffered significant weight loss and can walk only a limited distance without have a rest. He has significant difficulty in lifting, carrying and otherwise moving everyday objects."

In relation to question 3 the Claimant simply relied on his answer to question 1 which we have set out.

14. When the Claimant came to give evidence (as is apparent on the earlier factual background to which we have referred) he gave far more detail. The Employment Tribunal then concluded as follows:-

"76. The discrepancies between the response to the Further Particulars Order and the applicant's evidence. Although an explanation was offered, we did not find that it was convincing to say that communication difficulties explained a major discrepancy of this type.

77. The applicant's evidence where he appeared to be vague when he could be as to specifics and then to qualify his evidence when pressed, for example on the question of climbing stairs. [sic]

78. The inclusion of material in his evidence that could not on any view be relevant e.g. growing alcohol intolerance seemed to us to be an attempt to bolster a case that was thin in other areas.

79. We do not doubt that at times the applicant has suffered unpleasant symptoms sufficient to justify his absence from work. Nevertheless, we have formed the opinion that the applicant was, consciously or unconsciously, exaggerating his symptoms and their effects on him and in particular is not reliable as to timing."

15. The Employment Tribunal accordingly concluded, having accepted the Respondent's submissions that the Claimant was not a disabled person at the relevant time as defined in section 1 of the Disability Discrimination Act 1995 and his complaint was dismissed.
16. We now turn to consider the grounds of appeal. The first ground of appeal is to the effect that the Employment Tribunal misdirected itself as to the significance to be placed on the Further and Better Information provided by the Claimant. The Further and Better Information, it was said, highlighted his principal complaint, of joint pain and stiffness. Instructions were supplied by the Claimant to his solicitor at a time when he was unwell because he was undergoing a course of chemotherapy and he should not have been criticised for not giving the detail that he was subsequently able to give in evidence supported by Dr Langlands. Further, even as it stood the Claimant's evidence as to his joint pain and stiffness being the symptoms of disability referred to in the Further and Better Information "was sufficient to qualify as to disability within the meaning of the Disability Discrimination Act 1995."
17. The second ground of appeal is that the Employment Tribunal misdirected itself in overlooking the effects of treatment and/or medication namely painkillers which he took to overcome his problems with joint pain and stiffness. The Employment Tribunal instead preferred the evidence of witnesses called by the Respondent as to the Claimant's capacity for day-to-day activities notwithstanding that neither witness could give evidence of the Claimant's capacity in the absence of medication.
18. The third ground of appeal was that the Employment Tribunal misdirected itself as to the cumulative effects of the Claimant's symptoms which were, taken together, sufficient to qualify as a disability within the meaning of the Act. The fourth ground of appeal sought to be raised by amendment was that the Employment Tribunal misdirected itself as to the reliability of Dr Langland's evidence in particular having made findings against his evidence notwithstanding the absence of any challenge to that evidence. The fifth and final ground of appeal (which again the Claimant sought to raise by way of amendment) was that the Employment Tribunal had misdirected itself as to the long-term nature of the Claimant's symptoms "in the absence of direct questioning as to that duration."
19. Mr Barker began by drawing our attention to section (1) of the Disability Discrimination Act 1995:

(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."

He drew our attention to the provisions of section 3(3) which permits the Secretary of State to issue guidance about matters to be taken into account in determining whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities or whether such an impairment has a long-term effect. He also drew our attention to section (3) which requires an Employment Tribunal to take into account such guidance as appears to be relevant in determining whether impairment has the substantial and long-term adverse effect required.

20. He then took us to the first schedule to the Act and in particular provisions of paragraphs 2(1) and (2) and para 6(1) (2):-

"2.-(1) The effect of an impairment is a long-term effect if-

(a) it has lasted at least 12 months;

(b) the period for which it lasts is likely to be at least 12 months; or

(c) it is likely to last for the rest of the life of person affected.

(2) (2)                  Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

6(1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.

(2) (2)                  In sub-paragraph (1) "measures" includes, in particular, medical treatment and the use of a prosthesis or other aid."

Mr Barker also drew our attention to paragraph 8 (Progressive Conditions) but as this formed no part of his Notice of Appeal we say no more about it. We note at this stage that paragraph 4 of the first schedule to the Act lists a number of activities that are deemed to be 'normal day to day activities'. These comprise the activities specifically referred to in the order for further and better particulars.

21. Mr Barker then turned to the Guidance issued by the Secretary of State. He drew our attention to paragraphs A(4,5,6):-

"A4 The Act provides that an impairment is to be taken to affect the ability of a person to carry out normal day-to-day activities only if it affects that person in one (or more) of the respects listed in paragraph C4 (Sch.1, para4.). An impairment might not have a substantial adverse effect on a person in any one of these respects, but its effects in more than one of these respects taken together could result in a substantial adverse effect on the person's ability to carry out normal day-to-day activities.

A5. For example, although the great majority of people with cerebral palsy will experience a number of substantial effects, someone with mild cerebral palsy may experience minor effects in a number of respects listed in paragraph C4 which together could create substantial adverse effects on a range of normal day-to-day activities: fatigue may hinder walking, visual perception may be poor, co-ordination and balance may cause some difficulties. Similarly, a person whose impairment causes breathing difficulties may experience minor effects in a number of respects but which overall have a substantial adverse effect on their ability to carry out normal-day-to-day activities. For some people, mental illness may have a clear effect in one of the respects in C4. However, for others, depending on the extent of the condition, there may be effects in a number of different respects which, taken together, substantially adversely affect their ability to carry out normal day-to-day activities.

A6. A person may have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account should be taken to whether the impairments together have a substantial effect overall on the person's ability to carry out normal day-to-day activities. For example a minor impairment which affects physical co-ordination and an irreversible but minor injury to a leg which affects mobility, taken together, might have a substantial effect on the person's ability to carry out certain normal day-to-day activities."

22. Mr Barker submitted that we should adopt a purposive construction to the legislation and drew our attention to the decision of Morison J in Goodwin v Patent Office [1999] IRLR 4:-

"The Tribunal should bear in mind that, with social legislation of this kind, a purposive approach to construction should be adopted. Language should be construed in a way in which give 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, Tribunal's are given explicit assistance in two forms, which should detract from the need to adopt a loose construction of the language from the Guidance [issued by the Secretary of State] ….and Code of Practice]"

Mr Barker submitted that the Act focuses on what the Claimant cannot do or can only do with difficulty rather than what he can do. The Guidance was only illustrative and was not a check list to be slavishly followed.

23. He also submitted that where a Claimant suffered impairment of mobility so he could not engage in "normal endeavours of fitness" the likelihood would be that he would be disabled; in this regard he drew our attention to Coca Cola Enterprises v Shergill EAT September 2002. He also drew our attention to the decision of the Employment Appeal Tribunal (Mr Recorder Langstaff QC presiding) in Ekpe v Commissioner of Police of the Metropolis [2001] IRLR 605 in which the Employment Appeal criticised an Employment Tribunal for looking at examples of impairment item by item and reaching a conclusion upon each rather than having:-

"asked whether or not, taking the evidence as a whole, the admitted impairment had an adverse effect upon either or both manual dexterity and the ability to lift, carry or move everyday objects."

24. We do not consider that the law in this case is in any sense controversial.
25. The principal issue Mr Barker submitted was ground 3. The Employment Tribunal had failed to look at the question of disability cumulatively. This was contrary to the Guidance to which we have already referred; also he pointed to the findings made by the Employment Tribunal at paragraphs 3 to 28 (which we have summarised earlier) as to the effect of the Claimant's disability and he submitted that taking these matters together the Claimant fell within the definition set out in section 1 in that his physical impairment had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
26. In relation to this ground of appeal, and indeed in relation to other grounds of appeal, Mr Barker repeated on a number of occasions that the medical evidence clearly showed the Claimant to be disabled. He denied, however, that he was raising argument to perversity. When it was suggested that he might be seeking to raise an argument of perversity his response was that there was medical evidence before the Employment Tribunal to corroborate the Claimant's allegations and on the basis of that evidence there was clear cause for concern in relation to a number of the findings when looked at against the authorities to which we have referred and which were cited to the Employment Tribunal. Accordingly, the Employment Tribunal's decision was wrong in law. Mr Barker was asked whether he was saying that on the facts found the Employment Tribunal could only have found the Claimant to have been disabled. Mr Barker said that was not the case and went on to show us the evidence which, he submitted, showed that the Claimant was disabled within the meaning of the Act. However, as we pointed out to him during the course of his submissions, it is clear that the Claimant's evidence and that of Dr Langlands was not all accepted by the Employment Tribunal. Nevertheless, Mr Barker submitted the Employment Tribunal did not look at the matter cumulatively but on the findings it made it was bound to have treated the Claimant as disabled. The Employment Tribunal, it was submitted never looked at the symptoms as a whole.
27. In relation to ground 2 Mr Barker submitted that the discrepancy between the Further and Better Particulars and subsequent evidence was only a starting point and that in any event what was set out in the Further and Better Particulars was sufficient to amount to a disability within the meaning of the Act. He did accept, however, that the Further and Better Particulars were nothing like as detailed as the evidence that was subsequently led. Miss Gaskell put it to Mr Barker that the Employment Tribunal had dealt with the discrepancy as a matter going to credibility. Mr Barker responded that the Claimant had an explanation for this; he referred to the Claimant's medical condition at the time and his personal difficulties. He was homeless and unwell and indeed had sought an adjournment on the grounds of ill-health so that this was not simply an issue of fact because the Claimant could show the Employment Tribunal had failed to take proper account of matters before it.
28. Mr Barker went on to draw our attention to a further passage in Goodwin v Patent Office [1999] IRLR 4 at paragraphs 26 to 28 in which Morrison J said that the Employment Tribunal had to ask itself four sequential questions (i) Does the Claimant have an impairment, physical or mental? (ii) Does that impairment affect the ability to carry out normal day-to-day activities? (iii) Is that impairment substantial; i.e. more than trivial? (iv) Is it long-term? He submitted that on the evidence the Claimant had satisfied all of those requirements.
29. He then turned to deal with ground 2. The Employment Tribunal simply did not deal with the effect of the Claimant's medication. There was evidence that he had taken ibuprofen, paracetamol and Tea Tree oil although he accepted there was no evidence as to how often he took this medication. The fact that he took these pain-killers supported the inference that he was only able to carry out tasks by reason of his medication it was wrong for the Employment Tribunal to fail to deal with this matter.
30. In relation to the amendments he sought to make by adding grounds 4 and 5 Mr Barker drew our attention to the recent decision of the Employment Appeal Tribunal in Khudados v Leggate & Others [2005] IRLR 540. He stressed that the amendments had been before Lord Johnston at the preliminary hearing and simply amplified points of law that were already there. There was no prejudice to the Respondents who were not taken by surprise.
31. In relation to ground 5 we put to Mr Barker that the question may be controversial because he was raising issues as to absence of questioning. We could not adequately deal with this ground in the absence of agreed notes or possibly the Chairman's notes. Mr Barker told us that insofar as this ground of appeal raised matters of controversy he could not pursue it because he recognised it would require an adjournment. His submission was simply based upon paragraph 73 of the decision of the Employment Tribunal and his submission that the evidence was "unchallenged".
32. He then turned to deal with ground 4. He submitted the Employment Tribunal was selective in dealing with the medical evidence and so far as Dr Langlands' evidence was concerned the Employment Tribunal should not have disregarded unchallenged evidence and the decision to disregard it was perverse.
33. He finally turned to ground 5, the long-term nature of the Claimant's symptoms. He submitted the Claimant clearly had long-term symptoms it had never been suggested they had not lasted beyond a year. He recognised that Dr Langlands could only give evidence from the time of the Claimant's registration in his practice in early 2002 (we believe there is evidence he did not see Dr Langlands until October 2002). The Employment Tribunal had failed to deal with "indirect evidence", in particular the evidence of Dr Ryder, the Claimant's consultant hepatologist and had regard to part of Dr O'Kane's evidence that the Claimant was generally healthy but omitting reference to a further statement in which Dr O'Kane had mentioned the Claimant complained of arthralgia in lower back pain, right hip, right knee and fingers which was controlled by ibuprofen and of frequent upper right quadrant pain. He had given evidence of symptoms which had deteriorated since 1996 and that evidence had not been challenged. There was also his evidence of general lethargy and joint pain. There was no need to show he had suffered to a substantial degree. There was also evidence from Dr Langlands (which the Employment Tribunal had not accepted) which is to be found at page 47 of the bundle to the effect that Dr Langlands considered that from October to December 2002 the Claimant's mobility and manual dexterity were severely restricted. We assume as this evidence was rejected it had been challenged by the Respondents and we understand that this was the case.
34. We now turn to consider the submissions of the Respondents. As the Respondents have made common ground we do not see the need to differentiate between their submissions which we set out briefly. In relation to ground 1 the Respondents submitted that the Employment Tribunal had relied upon the discrepancy between the Further and Better Particulars and the evidence and had used that discrepancy in assessing the Claimant's credibility. That was a question of fact. The Further and Better Particulars in any event highlighted joint pain and tiredness but not stiffness. The Employment Tribunal rejected the Claimant's evidence in relation to mobility, manual dexterity and moving everyday objects as well as his ability to concentrate. These again were questions of fact. The Claimant did not seek to argue that his disability was progressive within the meaning of paragraph 8 of Schedule 1 to the Act. The Employment Tribunal rejected the Claimant's explanation for the discrepancies between the Further and Better Particulars and his subsequent evidence. That did not give rise to a point of law. The Employment Tribunal doubted the Claimant's credibility and believed he had exaggerated. That again was a question of fact. The Employment Appeal Tribunal could only entertain appeals that raised issues of law.
35. In relation to ground 2 (effects of treatment and/or medication) it was submitted that the Employment Tribunal had taken these matters into account; these matters are specifically referred to at paragraphs 9 and 23 of the decision.
36. In relation to ground 3 (failure to view matters cumulatively) the Respondents pointed out that the Employment Tribunal at paragraph 6 record the Claimant's submission that it was necessary to look at the position cumulatively. It was, say the Respondents, fine toothcombing of the judgment to say that the Employment Tribunal had not considered matters cumulatively. If one stood back and looked at the judgement as a whole it was clear the Employment Tribunal had looked at the matter in the round. The Employment Tribunal was extremely critical of the Claimant' evidence; (see paragraph 77) and paragraph 79 reflects the fact that the Employment Tribunal did look at matters in the round and have regard to the overall effect of the Claimant's symptoms. It was submitted that the Claimant was in fact seeking a declaration of perversity. The reason that the Employment Tribunal dealt with matters by reference to the specific factors culled from paragraph 4 of the First Schedule to the Act was because this is the way that the Claimant put his case; see paragraphs 29 and 30 of the decision and paragraph 35 in which the Employment Tribunal record that other material offered in evidence by the Claimant would be taken into account "into cumulative exercise". Mr Barker there accepted that none of these symptoms were bad enough for allowance to be placed on them on their own. Paragraph 78 of the decision of the Employment Tribunal again suggested that it had looked at matters overall.
37. The Respondents reminded us that the focus for the Employment Tribunal was the period at the end of 2002 and the preceding 12 months. The Further and Better Particulars had referred specifically to treatment that was about to commence in March or April 2003. It was suggested to us that the Claimant had been relating back consciously or unconsciously symptoms he suffered as a result of that treatment to an earlier period.
38. So far as the application to amend was concerned the Respondents did not suggest they were prejudiced in any way or unable to deal with the new grounds of appeal on the basis that the Claimant did not seek an adjournment to obtain a record of the evidence below for which it was too late. However, it was submitted that we should not in the exercise of our discretion allow the amendments because they were too late.
39. Thus in relation to ground 4 it was submitted that the amendment was too late and it should not be allowed. The Claimant was misstating the findings of the Employment Tribunal which only doubted Dr Langlands' reliability in relation to his conversation with Dr O'Kane. It did not cast doubt on the reliability of his evidence as a whole. There was no arguable point of law in this ground because the Employment Tribunal was entitled to choose between conflicting evidence and draw inferences as to reliability. The weight of the evidence was a matter for the Employment Tribunal.
40. So far as ground 5 was concerned (misdirection as to long-term nature of the Claimant's symptoms) the Employment Tribunal found on the facts that the symptoms were not long-term; this is clear from paragraph 73 of the decision. It is far too late, it was submitted for this ground to be raised now but in any event it was a decision the Employment Tribunal was entitled to come to on the facts. The Claimant had chosen to restrict his evidence as to his condition for the period up until the end of 2002. The Employment Tribunal found he was not a reliable witness in relation to the timing of his symptoms and had exaggerated them. If there was an absence of direct questioning as to the duration of the adverse effects of the Claimant's illness this was entirely attributable to the Claimant's presentation of his case and the Claimant should not effectively have a second bite of the cherry.

Conclusions

41. We broadly accept the Respondents' submissions.
42. So far as ground 3 is concerned the Employment Tribunal is clearly obliged to look at the effect of the Claimant's symptoms cumulatively. The Employment Tribunal does not say in terms that it has done so. However, it is clear that the Employment Tribunal was unable to accept much of the Claimant's evidence and made specific findings at paragraphs 66 to 72 of what he could or could not do and as to whether these matters were qualifying adverse effects. In our opinion looking at the matter in the round and in particular having regard to paragraphs 73, 74, 79 and 80 of the decision we are satisfied the Employment Tribunal did look at the effect of the Claimant's disabilities cumulatively. The Claimant's difficulty is that his evidence was found to lack credibility. Further, the Employment Tribunal, as the Respondents pointed out, adopted the methodology of the Claimant's solicitor in its approach to the various adverse effects relied upon. This is not a perversity appeal; the Employment Tribunal was highly critical of the Claimant's credibility and we do not consider that the Claimant has satisfied us that the Employment Tribunal failed to look at matters in the round or cumulatively.
43. We now turn to deal with ground 1. It is important to bear in mind that this is not a pleading point. In our opinion the issue here is credibility and in our opinion the Employment Tribunal was entitled to have regard to the significant discrepancy between the Further and Better Particulars supplied by the Claimant and his evidence. The Further and Better Particulars only highlighted joint pain and tiredness and not stiffness. The effect of the discrepancy between the Further and Better Particulars and the subsequent evidence was entirely a matter for the Employment Tribunal. It rejected the Claimant's evidence in relation to a number of matters, in particular in relation to mobility, manual dexterity and moving everyday objects as well as his ability to concentrate. It doubted his credibility and believed he was exaggerating. These were all questions of fact which do not give rise to a point of law.
44. We now turn to ground 2; we are satisfied having regard to paragraphs 9 and 23 of the decision in particular that the Employment Tribunal had in mind the effect of the ibuprofen, paracetamol and Tea Tree oil. We also bear in mind that there does not appear to have been any evidence given as to the frequency with which they were taken or as to whether it was only by reason of taking them that the Claimant was able to carry out everyday tasks. We do not consider there is anything in this ground of appeal.
45. Before we consider grounds 4 and 5 we are minded in the exercise of our discretion to allow these grounds to be raised by way of amendment. There is no prejudice or surprise to the Respondent but we allow the amendment to add ground 5, on the basis that the Claimant has to make do with the material contained in the judgment of the Employment Tribunal.
46. So far as ground 4 is concerned in our opinion this does not give rise to an arguable point of law. The Employment Tribunal was entitled to choose between conflicting evidence and draw whatever inferences it chose. Questions as to the weight and reliability of evidence are for the Employment Tribunal. Further, the evidence relating to this letter did not affect the Employment Tribunal's overall view of the credibility of Dr Langland's evidence. It must be recalled that the Claimant only registered with Dr Langlands at the beginning of 2002. Further, the Employment Tribunal only doubted the reliability of his evidence in relation to a conversation with Dr O'Kane in January 2002. The doubt as to his reliability was limited to that. This matter is in any event of no more than peripheral relevance.
47. So far as ground 5 is concerned (absence of direct questioning if that be the case), this reflects the way in which the Claimant presented his case. Insofar as it is necessary to examine this matter by reference to what took place before the Employment Tribunal we cannot do so in the absence of an agreed note or the Chairman's notes and the Claimant has disavowed any intention of seeking to raise issues of evidence that was before the Employment Tribunal; he took no steps to ensure that such evidence was available and his submissions must succeed or fail on the basis of the decision of the Employment Tribunal.
48. The Employment Tribunal found (see paragraph 73) that the Claimant's impairment had not been shown to be long-term. The Employment Tribunal was entitled to come to this conclusion because it declined to accept the Claimant's evidence as to the timing of his symptoms to be reliable and he had chosen to restrict the evidence of his condition to the period up until the period at the end of 2002.
49. We do not, therefore, think there is anything in this ground of appeal either.
50. In the circumstances none of the grounds of appeal succeed and the appeal must be dismissed.
51. We would conclude by thanking Mr Barker, Mr Sutherland and Mr Smith for their helpful submissions.