United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr K Marshall, Solicitor Dundee North Law Centre Top Floor 20 Grampian Gardens Fintry Dundee DD4 9QZ
For the Respondent	Miss S Findlay, Solicitor Messrs McGrigors Solicitors Princes Exchange 1 Earl Grey Street Edinburgh EH3 9AQ


 


SUMMARY

The claimant, a postman, had osteoarthritic changes in his right hip and chronic mechanical back pain. His employment was terminated on grounds of ill health. He claimed he had been unfairly dismissed on disability grounds. The issue of whether or not he was disabled was determined at a pre hearing review. The tribunal found that whilst the claimant had a physical impairment, it was not such as had a substantial effect on his ability to carry out normal day to day activities. The Employment Appeal Tribunal rejected a submission that the tribunal should have regarded him as disabled because he could not, without difficulty, bend to pick something off the floor and should have found him therefore unable to do housework, irrespective of the fact that housework was not in fact something that the claimant did. It was also argued that the Employment Tribunal should have made deduced effect findings on the basis of details of medication contained in a report that was produced. The Employment Appeal Tribunal, dismissing the appeal, held that the tribunal's finding that the claimant was not disabled was one which it was entitled to make on the evidence before them and that there was no evidential basis on which the Employment Tribunal could have made deduced effect findings.


 


THE HONOURABLE LADY SMITH

Introduction

1. Mr Vance, the claimant, who had been a postman employed by the respondents, applied to the Employment Tribunal in Dundee in respect of a claim that he had been unfairly dismissed in circumstances where he was discriminated against on grounds of disability. The question of whether or not he was disabled within the meaning of section 1 and Schedule 1 to the Disability Discrimination Act 1995 ("the 1995 Act"), was considered and determined at a pre- hearing review before the Chairman, Miss FCC Carmichael, sitting alone.
2. The claimant was represented before the tribunal and before me by Mr K Marshall, solicitor. The respondents were represented before the tribunal and before me by Miss S Findlay, solicitor.
3. I will refer to parties as claimant and respondents.

Facts

4. The claimant, who was aged 56 years at the time of the tribunal hearing, began working for the respondents as a postman in February 1992. His employment was terminated on 18 September 2004. In February 2001, the claimant had slipped and fallen on some ice, following which he suffered some ongoing pain due to osteoarthritic changes in his hip and chronic mechanical back pain. His walking pace slowed thereafter.
5. The claimant was off work on account of hip pain between 16 February and 6 April 2002 and for three months from 8 May 2004, due to back pain. After that he returned to work, in the caller's office, but could not continue because the job required him to be on his feet all day. He was referred to Dr Colvin by the respondents' occupational health advisers on 3 August 2004. Dr Colvin reported:

" Mr Vance has been on long term sick leave …with a right hip and back condition. He is under the care of his GP and there is currently no indication that he is fit to return to his normal work at present.

It is unlikely that the condition would be considered to fall under the Disability Discrimination Act at the present time."

6. The claimant was, thereafter, retired on ill–health grounds as from 18 September 2004. His own doctor's opinion at that time was that the claimant had chronic mechanical back pain and a degree of osteoarthritic change in his right hip. He thought it unlikely that he would ever be completely pain–free and that his problems would be exacerbated by jobs which required lifting or perhaps being on his feet for long periods. That month, the claimant began using a walking stick.
7. The claimant was examined by a doctor on behalf of the Department of Work and Pensions on 31 December 2004, Dr McGregor, who summarised the claimant's functional ability as being one involving a moderate back problem and moderate hip problem which combined to cause moderate restriction of sitting, rising, bending and kneeling. He also assessed the claimant as being unable to stand up for more than 30 minutes without having to sit down. The tribunal found, however, that due to inconsistencies in the claimant's evidence before them, considerable doubt was cast on the accuracy of Dr McGregor's assessment. Its assessment is summarised at the end of paragraph 16 :

" …the things the claimant could not do or only do with difficulty were walking a distance of between 150 ( his version) and 400m (Dr McGregor's opinion) without stopping , going up and down stairs , standing for lengthy periods and kneeling and bending."

8. I infer from the use of the word "lengthy" and the tribunal's express doubts about the accuracy of Mr McGregor's report that it was not satisfied that the claimant's ability to stand was limited to a period of only 30 minutes.
9. The Chairman noted that, at the hearing on 24 October 2005, the claimant climbed the two floors to the tribunal office and asked to be allowed to get up and move around after sitting for an hour and a quarter giving evidence. He went out each day to his local shop or to the bus stop to go further afield. He advised that he could not do any housework because of difficulty in squatting and kneeling but he did not require to do any as he employed his niece, who was anxious to earn some money, to do it for him. His doctor had advised him to get out and about as much as possible. His evidence was inconsistent as to whether or not his condition was worse than it had been at the time his employment was terminated.
10. There was evidence that, as at 30 September 2005, the claimant was being prescribed four different drugs, one of which appears to have been the painkiller Dihydrocodeine. There was no evidence led as to what, if any, medication was prescribed for the claimant as at the date of termination of his employment. There was a reference in Dr McGregor's report of 31 December 2004, to the claimant's medication as at that date but he was not asked about that part of his report in evidence.
11. The tribunal found, at paragraph 17:

"Although the examples at C14 of the Code of Practice refers to 'inability to walk at other than a slow pace', there was no indication of how slowly the claimant walked, for example the time it took him to get to a bus stop 150 metres from his house, except that as a postman he found he was doing his rounds more slowly due to his impairment. The fact that he climbed two floors down and then up again to his flat nearly every day did not suggest his difficulty with stairs was a substantial one. In going out every day he was accepting his doctor's advice to stay active and get out as much as he could. While accepting he could not kneel or bend down to pick an item off the floor, he conceded he could bend forward 'a bit', but in any event these were not day to day activities of his because he did not do, or hardly ever did these things. Housework does not necessarily involve kneeling, and he was able to bend 'a bit', but he did no housework because he hired his niece to do it. The alternative job the claimant was assigned to in August 2004 had not been successful because it involved him being on his feet for 7-8 hours in the day. Dr McGregor's assessment agreed with the claimant's own that he could stand for up to 30 minutes before needing to sit down".

The Tribunal's Judgment and Reasons

12. The tribunal, having made findings as to the nature of the claimant's disability as set out in paragraph 17, went on to consider the matter of deduced effect, namely what the claimant's condition would have been had it not been for the treatment he was receiving. In his case, that treatment was regular medication. The tribunal decided that it was not possible to make any assessment of deduced effect because there was no evidence led as to the nature and effect of the medication in question or as to what the claimant's pain levels would have been without it.
13. In these circumstances, it found that the claimant was not disabled within the meaning of section 1 of the 1995 Act.

The Claimant's Case on Appeal

14. For the claimant, Mr Marshall advanced three grounds of appeal. His first was a perversity ground. No reasonable tribunal could, he submitted, have reached the conclusion that the claimant was not disabled because it was obvious that a person who was restricted in the manner summarised by the tribunal at the end of paragraph 16 was disabled. It did offence to the words "minor" or "trivial" so to suggest. The latter was a reference to paragraph A1 of the Guidance promulgated on the matters to be taken into account in determining questions relating to the definition of disability which states that a "substantial" effect is one which is more than "minor" or "trivial". He also relied on the paragraph A4 of the Guidance although it was not entirely clear why since that is a section which deals with cases where a claimant's impairments fall under more than one of the heads set out in paragraph 4 of Schedule 1 to the 1995 Act and in this case, the claimant's impairments fell within only one of those heads. He referred to paragraph C5 of the Guidance for a passage which stressed the need to recognise that impairment could affect a range of a person's normal daily activities.
15. Mr Marshall's submission seemed to be that the tribunal had failed to follow the Guidance. He did not, however, make any submission as to its status nor did he address the fact that the tribunal expressly took it into account in its reasoning.
16. Under reference to the cases of East Berkshire Health Authority v Matadeen [1992] 336 and Yeboah v Crofton [2002] IRLR 634, he submitted that the decision was a perverse one.
17. Secondly, Mr Marshall submitted that with regard to the question of normal day-to-day activities, the tribunal had erred in that it had taken a subjective, not an objective view. The particular matter on which he focussed was the way in which the tribunal had dealt with the evidence regarding the claimant's housework. Ultimately, his submission was that it was irrelevant that the claimant did not do housework because his niece carried it out for the reason to which I have referred. The claimant would have had difficulty in picking things up from the floor if he did do housework and that was enough to show that he was disabled for the purposes of the Act. The submission seemed to centre only on the phrase "normal day-to-day activities" which appears in section 1 of the 1995 Act.
18. Mr Marshall referred, in support of his submission, to paragraph C2 of the Guidance. He referred also to the case of Abadeh v BT [2001] IRLR 23 and Goodwin v The Patent Office [1999] IRLR 4, though recognising, in the course of his submissions that Abadeh was not in fact supportive of his argument.
19. Thirdly, Mr Marshall submitted that the tribunal had erred regarding its determination on the matter of deduced effect. It had before it the details of his prescription as at 30 September 2005 and as at 31 December 2004. It had referred to the former but not the latter, in its reasons. He had drawn the tribunal's attention, in the course of his submissions, to the details of the claimant's medication given in Dr McGregor's report of 31 December 2004 but it had apparently been overlooked. Those details showed that the claimant was receiving a high dose of painkillers close in time to the point of termination of his employment. It should have been inferred that there was a significant deduced effect.

The Respondents' Case on Appeal

20. In a clear, well prepared and cogent submission, Miss Findlay invited me to dismiss the appeal.
21. The claimant had not, she submitted, made out a case of perversity. It was not enough to state that it was "obvious" that the claimant was disabled or to argue that a different view of the evidence should have been taken: Chiu v British Aerospace PLC [1982] IRLR 56. The tribunal had taken into account the evidence and had given due and appropriate attention to the Guidance. The word "substantial" should be given its ordinary meaning. It was not for the Employment Appeal Tribunal to set about a fresh assessment of the facts: BT v Sheridan [1990] IRLR 27; Eclipse Blinds Ltd v Wright [1992] IRLR 133. The test for perversity was a high one and was not met: Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440; Yeboah v Crofton.
22. Regarding the claimant's second ground of appeal, she observed that if the claimant's argument were correct, it would never be necessary to examine a person's individual circumstances yet section 1 of the 1995 Act clearly required that to be done. The tribunal had not excluded housework from the category of normal day-to-day activities. It had simply found that the claimant did not do it. In any event, the claimant, upon whom the onus lay, led no evidence as to the nature and extent of housework that he could or could not do. The tribunal were thus put in a difficult position. They were entitled to find as they did on the matter of his ability to pick things up from the floor.
23. Regarding the claimant's third ground of appeal, Miss Findlay submitted that the evidence led had been wholly inadequate. No evidence was led as to what medication the claimant was receiving at the relevant time. No evidence was led regarding the purpose or strength of the medication that he was prescribed at the time of the hearing or as to its effect on him. Dr McGregor had not been questioned about the claimant's medication and was not, accordingly, cross examined regarding it.
24. In summary, the tribunal's decision was said to be the result of a proper appreciation of the law, reached upon findings in fact that were supported by the evidence led and was not a decision which no reasonable tribunal could have reached.

Relevant Law

25. Section 1 of the 1995 Act provides :

"1. Meaning of 'disability' and 'disabled person'

(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.

(2) In this Act 'disabled person' means a person who has a disability".

26. Schedule 1, paragraph 4 provides:

"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.

(2) Regulations may prescribe –

(a) circumstances in which an impairment which does not have an effect falling within sub-paragraph (1) is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities;

(b) circumstances in which an impairment which has an effect falling within sub-paragraph (1) is to be taken not to affect the ability of the person concerned to carry out normal day-to-day activities".

27. Schedule 1, paragraph 6(1) provides

"Effect of medical treatment

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".

28. It is plain from the terms of s.1 that if a person is impaired physically in a way which has a substantial and long term adverse effect on his ability to carry out a normal day-to-day activity which, at the relevant time, was one of his normal day-to-day activities, then he is disabled within the meaning of the Act. As is reflected in paragraph C2 of the Guidance, a person will not be treated as disabled because he is substantially impaired in his ability to carry out an unusual activity even if it is an activity that is normal for him. However, it is not a corollary of that that where a person does not, as part of his daily life, carry out an activity that is normal for others, that he is to be treated as disabled if he would not be able to do it, which was the thrust of Mr Marshall's submission on this matter If Mr Marshall were correct, the reference in the section to the matter of the extent of person's impairment would be otiose.

Discussion and Conclusions

29. I have no hesitation in dismissing this appeal. Mr Marshall accepted that the tribunal were entitled, on the evidence, to make the findings in fact recorded by it. The tribunal has expressly referred to the relevant law. It has taken account of the Guidance insofar as it is relevant. Much of Mr Marshall's reliance on it was, however, not relevant such as his reliance on paragraph C2 of it in support of his submission that a person would be disabled in terms of the Act if they could not carry out an activity which was not one of their normal activities if in fact that activity could be characterised as "normal day-to-day". There was confusion in his approach. He sought to apply to the claimant's position regarding housework the same considerations as would require to be applied in a case where the reason that a person does not carry out a particular day-to-day activity is that they have adjusted their lifestyle so as to accommodate an impairment from which they suffer in a way which, by the relevant date, has come to exclude that activity. That is the sort of case which was considered in Goodwin v The Patent Office and is quite different from the circumstances that the tribunal had to consider here.
30. As regards Mr Marshall's submission that the tribunal's decision was perverse, it was patently an attempt to have the evidence revisited, reconsidered and weighed differently by this tribunal. But, absent error of law, that is exactly what the Employment Appeal Tribunal must not do. Even where there is an error of law, in most cases, the appropriate course is for the Employment Appeal Tribunal to remit rather than form its own view. The tribunal did not err in law and the high test for perversity as articulated in cases such as Yeboah v Crofton is manifestly not passed in this case.
31. Finally, turning to the matter of deduced discrimination, the claimant falls at the first hurdle since there was no evidence whatsoever before the tribunal as to the medication, if any, being prescribed to the claimant as at the date his employment terminated. For that reason alone, there was no relevant evidence before the tribunal on the basis of which it could have made an assessment for the purposes of paragraph 6(1) of Schedule 1. Further, the tribunal was not wrong to ignore Mr Marshall's submission under reference to the part of Dr McGregor's report regarding the claimant's medication over three months later, as it was not referred to in evidence. That being so, it was not evidence that was before them. Finally, the tribunal rightly commented that such evidence as it had was quite inadequate for it to reach any view on deduced discrimination. Their comments would have been equally apt if they had been considering the information in Dr McGregor's report.

Disposal

32. For the above reasons, I am satisfied that the appeal should be dismissed and will pronounce an order to that effect.