United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr D B Stevenson, Solicitor Of- Messrs Thompsons Solicitors 16-18 Castle Street EDINBURGH EH2 3AT
For the Respondent	Mrs N McClelland, Solicitor Of- Messrs Thorntons Solicitors 50 Castle Street DUNDEE DD1 3RU

SUMMARY
DISABILITY DISCRIMINATION

Disability

The ET correctly decided that the Claimant was not disabled by incontinence since he was not proved to be incontinent at the date of the dismissal, and anyway did not meet the long-term adverse effect conditions.


 


HIS HONOUR JUDGE McMULLEN QC:

1. This case is about the definition of discrimination related to disability, which takes the form of incontinence. We will refer to the parties as Claimant and Respondent. To understand this judgment, upholding as we do that of the Employment Tribunal, it will be useful to adopt the definition which the Tribunal did from Dr Duffy, the Claimant's expert, which is as follows:-

"there is a clear distinction to be drawn between diarrhoea, which she defined as loose watery unformed stools, and incontinence, where it is not possible to control the anal sphincter in time to visit the toilet. In addition, as Mrs McClelland quite properly submitted on behalf of the respondents, there is a large gap in the claimant's clinical notes from the first mention of diarrhoea on 22 October 2002 to the next time it is noted on 8 January 2004 and, as she said, one would have expected both a reference to diarrhoea and to the question of incontinence if they both existed."

That corresponds to a definition in the OED of "continent", which is used as an adjective, "able to control movements of the bowels and bladder." The judgment represents the views of all three members.

Introduction

2. It is an appeal by the Claimant in those proceedings against a judgment of an Employment Tribunal sitting at Dundee, Chairman Mr A Worthington, entered in the Register on 12 January 2005. A Review judgment was entered in the Register on 1 February 2005 and it is common ground, since both of the parties have referred to it, that we should take account of the reasons given in that judgment of the Chairman when we consider the substantive issue in the case.
3. The judgment was on a preliminary point to determine whether the Claimant met the definition of "disabled" within the Disability Discrimination Act 1995. The Tribunal decided that he did not. The Claimant appealed, having instituted an application for Review. The case was determined by Her Honour Judge Wakefield to be heard at a full hearing and that is the basis upon which we approach today's hearing.

The legislation

4. The relevant provisions of the legislation are the Disability Discrimination Act 1995, section 1 of which provides as follows:-

(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."

Further elaboration is given in Schedule 1 to the Act of the words "long-term effect" so that Schedule 1 paragraph 2 provides as follows:-

"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."

Further illumination is given by paragraph 4 which, so far as is relevant to our case today, provides as follows:-

"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."

5. By section 3 of the Act, guidance is to be given to answers to certain of these questions by the Secretary of State issuing statutory guidance and this is to assist in determining whether a person is a disabled person. She has given such guidance, in particular relevant guidance is C9 and C17:-

"C9 In deciding whether an effect on the ability to carry out a normal day-to-day activity is a substantial adverse effect, account should be taken of factors such as those mentioned under each heading below. The headings are exhaustive- the person must be affected in one of these respects. The lists of examples are not exhaustive; they are only meant to be illustrative. The assumption is made in each example that there is an adverse effect on the person's ability to carry out normal day-to-day activities. A person only counts as disabled if the substantial effect is adverse."

C17 This covers the ability to control urination and/or defecation. Account should be taken of the frequency and extent of the loss of control and the age of the individual.

Examples

It would be reasonable to regard as having a substantial adverse effect:

•                         even if infrequent loss of control of the bowels;

•                         loss of control of the bladder while asleep at least once a month;

•                         frequent minor faecal incontinence or frequent minor leakage from the bladder.

It would not be reasonable to regard as having a substantial adverse effect;

•                         infrequent loss of control of the bladder while asleep;

•                         infrequent minor leakage from the bladder."

6. The Tribunal directed itself by reference to those provisions, and we are told, by reference to the leading authority which is Goodwin v The Patent Office [1999] IRLR 4 and to Cruickshank v VAW Motorcast Limited [2002] IRLR 24. Goodwin determines the four questions which are to be examined should there be an issue on the preliminary point as to whether a Claimant is disabled, and Cruickshank focuses attention on the time of the relevant unlawful act, here dismissal of the Claimant on 16 March 2004.

The facts

7. The facts can only be tentatively stated because this is an appeal from a preliminary hearing. . The Respondent, is a major publishing house in Dundee with coverage nationally and internationally in a number of daily papers and other weekly publications. The Respondent employs a large number of people in Dundee and in other parts of Great Britain. The Claimant was engaged for ten years as a dispatcher and packer. He is 34.
8. The Claimant first visited his general practitioner complaining of epigastric discomfort on 17 October 2002. He went on a significant number of other occasions and had some periods off work. The Respondent maintains a written policy of dismissal, following proper procedures, when more than four occasions of absence have occurred in the year or the number of days has exceeded twenty. The Claimant, after an indication was given to him that his job was in peril, exceeded one or other of those targets and was dismissed. He brought proceedings claiming that his dismissal was for a reason related to his disability, irritable bowel symptom, and that he was unfairly dismissed contrary to section 98(1) of the Employment Rights Act, what is generally known as ordinary unfair dismissal. The Tribunal determined against him that he was not a disabled person but his claim for ordinary unfair dismissal lives on and is presently sisted pending the determination of this appeal.
9. The Tribunal found the Claimant was not, at the date of his dismissal, incontinent. It did so having explained the evidence from the Claimant and from his GP, Dr Duffy. There were also some medical notes and examination by Dr Dorward, the occupational health physician of the Respondent.
10. The Tribunal, nevertheless, went on to consider whether or not the four conditions set out in Goodwin had been met and determined the first in favour of the Claimant, which is that since he was required to establish on the balance of probabilities all four of the relevant features, he had shown, to the Tribunal's satisfaction to the required standard, that he had met the physical impairment condition. The four conditions, set out in Goodwin are:-

"(1) Does the applicant have an impairment which is either mental or physical? Mental impairment includes an impairment which results from or consists of a mental illness provided that the mental illness is "clinically well-recognised". If there is doubt as to whether a mental illness falls within the definition, it would be advisable to ascertain whether the illness is mentioned in the World Health Organisation's International Classification of Diseases.

(2) Does the impairment affect the applicant's ability to carry out normal day-to-day activities in one of the respects set out in Schedule 1, para. 4(1), and does it have an adverse effect? The Act is concerned with a person's ability to carry out activities. The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. The focus of 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.

(3) Is the adverse effect substantial? "Substantial" means "more than minor or trivial" rather than "very large". The tribunal may take into account how the applicant appears to the tribunal to "manage", although it should be slow to regard a person's capabilities in the relatively strange adversarial environment as an entirely reliable guide to the level of ability to perform normal day-to-day activities. The tribunal should examine how an applicant's abilities have actually been affected whilst on medication and then consider the "deduced effects" – the effects which they think there would have been but for the medication – and whether the actual and deduced effects on ability to carry out normal day-to-day activities is clearly more than trivial.

4. Is the adverse effect long-term? These provisions appear to be straightforward."

The Tribunal therefore decided (the Claimant having passed the first condition) that it should consider what must be plainly valued judgments of fact and degree as to whether the impairment had substantial and long-term effects. Although it did not distinguish between those two conditions in terms, it determined the Claimant did not pass either of those conditions.

The Claimant's case

11. On appeal, the Claimant contends that the Tribunal misconstrued the approach to the word "incontinent". We have, by agreement, made a correction to the language of the Tribunal, which we have cited at para 11 above. It is contended that the Tribunal had more than adequate evidence to find that there was disability, but that it required the Claimant to establish incontinence, rather than difficulties with achieving continence. This was an abuse of the test prescribed in Schedule 1 paragraph 4 and in the Guidance. It was contended by reference to Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19 EAT Nelson J that the correct test had not been applied, for there was focus on what the Claimant could do and not what he could not do, or could only do with difficulty.
12. The Tribunal also failed in its duty to provide proper reasons for its decision when it failed to distinguish its findings by reference to the four conditions in Goodwin. The judgment of the Tribunal relating to the Claimant's impairment was perverse in that the Tribunal had failed to pay attention to the evidence presented by the Claimant of diarrhoea and symptoms of gastroenteritis. We should substitute our judgment that the Claimant was disabled or the matter should be remitted to the Tribunal if our judgment were that its lacked proper reasoning.

The Respondent's case

13. On behalf of the Respondent, Mrs McClelland contended that the Tribunal judged matters of fact with access, not just to the evidence of the Claimant himself and his GP, but the full medical notes which were presented to it, noting that there was a substantial gap in the history. On the assumption that the Claimant did have irritable bowel symptom, the sole issue advanced as contributing to an impairment in his ability to do everyday events, was incontinence and the Tribunal had not misapplied the statute and the Guidance.

The legal principles

14. The legal principles to be applied in this case derive from the authorities which we have cited. Goodwin requires an approach to the four conditions. Cruickshank focuses the attention on the date of the relevant event. A tribunal is required to give proper reasons for its judgment, Yeboah v Crofton [2002] IRLR 634 and a tribunal is required to consider both the Schedule to the Act and the Guidance and to apply it.

Conclusions

15. With those principles in mind we have no hesitation in accepting Mrs McClelland's argument. First, and most important, although this did not occur in this order in Mr Stevenson's argument, is the finding that the Claimant did not present as incontinent on 16 March 2004. This, in our judgment, is fatal to his case. The Tribunal has given cogent reasoning for the conclusion which it makes. The definition which the Tribunal has given, distinguishing diarrhoea from incontinence, has not suffered a serious challenge before us. In any event, we accept it, for that was the evidence of the Claimant's GP.
16. The highest this goes in the Notice of Appeal is that the Claimant was presenting various gastric problems in 2002; but on the evidence presented to the Tribunal and its findings, the Claimant did not present as incontinent. The Tribunal considered whether he may have been reticent, since this was an aspect of the evidence, but concluded that he had no reason to be embarrassed about his condition when speaking to medical practitioners. Thus, there is a firm finding against the Claimant that the sole condition demonstrating adverse effect for the purposes of conditions 2 and 3 in Goodwin, that is, incontinence, was not made out.
17. Nevertheless, if the Tribunal, and we are wrong about that, we will consider the submission made to us about the language of the section. We had some difficulty in grasping the way in which this was argued before us. In paragraph 4 of Schedule 1, all of the conditions are presented positively, that is, they all represent what a person normally can do. A person normally has manual dexterity and has continence, thus it would be a surprising use of language if the abnormal condition were to be included in this list. The Tribunal correctly addressed itself as to what was required by this paragraph. It is to consider whether the effect on day-to-day activities of any of these conditions was such as to be substantial and long-term. It certainly did not place too high a burden on the Claimant. It was not considering on the one hand, total lack of control of his bowels and, on the other, total control, but it addressed itself in terms to paragraph C17 (above) which was the specific provision dealing with continence.
18. Thus, the Tribunal was dealing with a sliding scale and correctly assessed the evidence which it had been given by Dr Duffy. We reject the contention that the Tribunal has incorrectly focussed, contrary to the judgment's length, on improper considerations. The Tribunal here was engaged upon applying both the statute and the Guidance to the evidence which it had before it and, in our judgment, not only committed no error but appears to us to have come to a correct conclusion; first, as a matter of fact as to the presentation by the Claimant of alleged incontinence at the relevant time and, secondly, as to the self-direction relating to the second and third conditions in Goodwin.
19. We note this case is going on. ACAS is available for conciliation. The Claimant obviously has lost what would be a major part of his case but, plainly, the Respondent has a policy which it seeks to apply. All three of us would very much urge the parties to consider using the services of ACAS to see if a conciliated solution to this case can be reached.
20. Fourteen days from today the Claimant will serve a Witness Statement relating to his claim of ordinary unfair dismissal. Respondent's evidence 14 days thereafter. Both to be exchanged and lodged at the Employment Tribunal. The Claimant to apply for a two-day hearing.
21. We would very much like to thank both Mr Stevenson and Mrs McClelland for their careful submissions to us today. The appeal is dismissed.