United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR STEPHEN PEACOCK (Solicitor) Messrs Weightmans Solicitors 41 Spring Gardens Manchester M2 2BG
For the Respondent	MR MICHAEL MULHOLLAND (of Counsel) Messrs Linder Myers Solicitors Phoenix House 45 Cross Street Manchester M2 2JF

SUMMARY

Disability Discrimination: Disability

The Chairman erred in rejecting the evidence of a clinical diagnosis of severe dyslexia for reasons which were not sustainable. Once this diagnosis is accepted, pursuant to Guidance C12 it is "obvious" that the effect is substantial on day-to-day activities. The parties agreed that since the Chairman otherwise directed herself correctly, she reached the correct result.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about the diagnosis of severe dyslexia which, in the Guidance issued under the Disability Discrimination Act 1995 meets the definition of disability. This is the only issue on appeal following a helpful joint approach by the advocates today. I will refer to the parties as Claimant and Respondent.

Introduction

2. It is an appeal by the Respondent in those proceedings against a judgment of an Employment Tribunal Chairman, Mrs P A Feeney (sitting alone) at a PHR in Manchester on 21 and 22 July, 8 September followed by a day in chambers on 29 November and registered reasons on 29 December 2005. There has been no explanation for this protracted procedure, but no complaint is made of it. The Claimant was represented there by his father and today by Mr Michael Mulholland of Counsel. The Respondent is represented today by Mr Steve Peacock, solicitor and previously by a different solicitor of the same firm.
3. The Claimant claimed unlawful disability discrimination when he resigned from the Respondent's service. The Respondent denied discrimination and alleged that the Claimant was not disabled. That matter was set for a preliminary hearing. The essential issue, as defined by the Chairman was as follows:

"15.1 Was Mrs Pilkington's diagnosis of the claimant as suffering from severe dyslexia sufficient to bring him within the meaning of disability within the 1995 Act without more?

15.2 If not, did the claimant's dyslexia have a substantial adverse effect on normal day-to-day activities?"

.

4. An understanding of this case is given by Mr Snodgrass the Claimant's expert, for he describes what dyslexia is.

8.1 Dyslexia

8.1.1 The British Dyslexia Association defines as: a combination of abilities and difficulties which affect the learning process in one or more of reading, spelling, writing, and sometimes numeracy/language. Accompanying weaknesses may be identified as areas of: speed of processing, short term memory sequencing, auditory and/or visual perception, spoken language and motor skills (see ref 3).

8.1.2 Most definitions of Dyslexia based on the experiences of children. Adults who have such difficulties need to be understood in a much broader context. Based on the literature and current research, the definition of Dyslexia (in the context of adults) proposed by McLoughlin (see ref 2) is applicable.

Developmental Dyslexia is a genetically inherited and neurologically determined inefficiency in working memory the information processing system fundamental to learning and performance in conventional educational and work settings, it has a particular impact on verbal and written communication as well as organisation, planning and adaptation to change.

8.1.3 The above definitions move Dyslexia away from just a disorder associated with reading and writing. They underpin the associated cognitive disorders, that lead to difficulties in acquiring competences in reading and writing for the individual and further cause performance difficulties in their own right.

8.1.4 From these difficulties secondary characteristics may occur. These include:

Stress and anxiety -resulting from being overwhelmed by the complexity of life's demands.

Low self esteem and feelings of incompetence

Helplessness resulting from a limited understanding of the full affects of the disability".

The Judgment

5. The Chairman decided that the Claimant was disabled and a merits hearing beckons. The Respondent appeals. Directions sending the appeal to a full hearing were given in chambers by Elias J, (P). Further directions were given today. Both advocates acknowledge that there is something wrong with the judgment. Mr Peacock seeks to overturn it and submits that I should substitute a view that the Claimant failed to prove he is disabled.
6. Mr Mulholland acknowledges that the Chairman proceeded to her conclusion by what he described as a needlessly complicated route, but nevertheless got to the right destination. He concedes that the judgment, in places, is short of reasoning, but seeks to affirm it on other grounds. Using the imagery derived from a Victorian Punch cartoon, he contends that the judgment is, "in parts, like the curate's egg, excellent". That, of course, is a misconception since an egg is all good or bad, whereas, as I shall go on to find, this judgment is partly good and partly not so good.

The legislation

7. The relevant provisions of the legislation derive from the Disability Discrimination Act 1995 and are as follow. The definition of discrimination is provided by s1.

"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.

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

The reference to Schedule 1 is to a series of further provisions which, so far as are relevant to our appeal, relate to paragraph 4 which provides:

"4. An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities if it affects one of the following:

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

8. The Act provides that guidance is to be given by the Secretary of State and is to be taken into account by an Employment Tribunal when it is relevant to an issue. The Guidance is called Determining Questions Relating to Disability and so far as is relevant, it provides as follows:

"PART II GUIDANCE ON MATTERS TO BE TAKEN INTO ACCOUNT IN DETERMINING QUESTIONS RELATING TO THE DEFINITION OF DISABILITY

A Substantial

MEANING OF 'SUBSTANTIAL' ADVERSE EFFECT

A1 The requirement that an adverse effect be substantial reflects the general understanding of 'disability' as a limitation going beyond the normal differences in ability which may exist among people. A 'substantial' effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects. A 'substantial' effect is one which is more than 'minor' or 'trivial'"

Further clarification is given in the treatment of the question there, which is the meaning of "substantial".

9. The next issue is the meaning of long-term effects which is dealt with by paragraphs with the prefix "B"; and the meaning of normal day-to-day activities is given in Part C which provides this:

"C1 The Act states that an impairment must have a long-term substantial adverse effect on normal day-to-day activities (s 1)".

C4 The Act states that an impairment is only to be treated as affecting the person's ability to carry out normal day-to-day activities if it affects one of the following:

memory or ability to concentrate, learn or understand; or .perception of the risk of physical danger (Sch 1 para 4).

C5 In many cases an impairment will adversely affect the person's ability to carry out a range of normal day-to-day activities and it will be obvious that the overall adverse effect is substantial or the effect on at least one normal day-to-day activity is substantial. In such a case it is unnecessary to consider precisely how the person is affected in each of the respects listed in paragraph C4. For example, a person with a clinically well-recognised mental Illness may experience an adverse effect on concentration which prevents the person from remembering why he or she is going somewhere; the person would not also have to demonstrate that there was an effect on, say, speech. A person with an impairment which has an adverse effect on sight might be unable to go shopping unassisted; he or she would not also have to demonstrate that there was an effect on, say mobility.

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.

C12 Examples of effects which are obviously within the definition are not included below. So for example, inability to dress oneself, inability to stand up, severe dyslexia or a severe speech impairment would clearly be covered by the definition and are not included among the examples below. The purpose of these lists is to provide help in cases where there may be doubt as to whether the effects on normal day-to-day activities are substantial".

10. There then follows a series of examples dealing with various described conditions including that of memory or inability to concentrate, learn or understand, where there is this:

"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 given are those where a person is reasonably to be regarded as suffering adverse effects and not reasonably to be so regarded. Broadly speaking, the distinction is between those conditions, which are long-lasting and persistent and those which are transient and minor.

11. Related to one of the words for construction in this judgment are the provisions dealing with severe disfigurement which are provided in Schedule 1 paragraph 3.

"3. - (1) An impairment which consists of a severe disfigurement is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities."

In so far as the Guidance applies to the questions occurring under severe disfigurement, there is this:

"A16 The Act provides that where an impairment consists of a severe disfigurement, it is to be treated as having a substantial adverse effect on the person's ability to carry out normal day-to-day activities. There is no need to demonstrate such an effect (Sch 1 para 3)".

12. I will explain in my conclusions why reference to these provisions on severe disfigurement may be of some assistance.

The facts

13. I will state the facts only so far as it is necessary for an understanding of this judgment. The Respondent runs a major national chain of hotels including three Marriott Hotels in Manchester and the Claimant was engaged at the Worsley Marriott.
14. As to the Claimant, the Tribunal found this:

"14. The claimant is 17 years old. He had attended the Fred Longworth High School High School in Tyldesley Manchester. Due to his parents becoming concerned that he was not progressing sufficiently well at school he was referred to a LEA Educational Psychologist, who did not diagnose him as having dyslexia. The claimant's parents were not happy with this and commissioned their own report from a Mrs Isobel Pilkington. Mrs Pilkington produced her report in August 2000 when the claimant was 13 years and 4 months old: Within this report she describes the claimant as severely dyslexic. Mrs Pilkington used a test called WISC assessing the claimant. This is a test designed for children. There is a separate adult test. Following this the claimant was statemented with special educational needs.

(a) He left school at 16 with 3 GCSEs including English and attended a catering Course for three months. He obtained a distinction in his NVQ Catering Certificate. Following leaving catering college the claimant worked at Debenhams for six months. He had a part-time job there serving food at a food bar within the department store and he was able to take food orders from customers and serve the food to them without assistance he did not report any problems. He then moved to Whitbread Hotels as a Trainee Chef. He applied for the job with Whitbreads. which is a modern apprenticeship however he did not fill in the application form a friend did. Subsequently he had an interview with Gary Jenkins".

15. In due course, the Claimant began to work for the Respondent and the Tribunal said this:

The claimant then began work but after 6 weeks he alleged that the Executive Chef, Mr Jenkins, suggested that he was not cut out to be a chef and offered him an alternative position as a kitchen porter. This is part of the substance of his main claim including claims of harassment and the Chairman will not make any findings in respect of matters which are relevant to the substantive claim. As a result of this talk with Mr Jenkins the claimant says that he decided to resign but on discussing it with his parents they raised the matter with Mr Nicholson. The claimant's father attended the Respondent's premises and refused to leave until Mr Nicholson saw him on 6 September. Following this, Mr Nicholson also met with the Claimant and his mother.

We do not find Mr Nicholson's evidence in respect of the issue we have to determine very relevant. Mr Nicholson's evidence was directed at how he observed the claimant in this one interview and it was the Chairman's view that this was insufficient to form any conclusions regarding the question at hand.

Following the meeting with Mr Nicholson nothing was resolved and the claimant's resignation took effect.

Some time prior to his dismissal he was sent a medical questionnaire which his mother filled in. He was asked on this form if he had any disability. It was indicated he had dyslexia Mrs Bayley stating "NB Dyslexia will have a minor effect". He then brought Tribunal proceedings alleging unfair constructive dismissal, sex discrimination, disability discrimination. He had insufficient service to claim unfair dismissal and today it was a question simply of determining whether he was disabled within the meaning of the Act".

16. Proceedings were started for constructive unfair dismissal following the Claimant's allegations against fellow employees (which the Tribunal Chairman correctly avoided making a judgment about at this stage of the proceedings).
17. Before descending into an examination of the evidence, the Chairman made observations about the witnesses of a general nature. The witnesses giving live evidence were Mr Snodgrass, a chartered psychologist for the Claimant, and Dr Wilson, an occupational health physician for the Respondent. She was disappointed with Mr Snodgrass' evidence and did not find it helpful, but found Dr Wilson's to be helpful. In addition, evidence was provided by rs Isobel Pilkington, also a chartered psychologist, which was seen by the two witnesses and commented upon.
18. In her conclusion on the central issue, the Chairman said this:

"19. I find firstly that the claimant cannot rely on Mrs Pilkington's report to establish that he has severe dyslexia and therefore comes within the Guidance as someone with an "obvious" disability. I find this because (1) the report is 5 years old (2) neither Mrs Pilkington nor the guidance provide any definition of severe to judge their meaning separately or comparatively and Mrs Pilkington was not called to give evidence (3) that a child's test was used .Any one of these reasons justifies my decision in this respect".

However, having considered a number of other issues in the case (which it is not necessary for me to expand upon) the Chairman came to the conclusion that the Claimant is disabled. The sole focus, therefore, is upon the meaning, effect and correctness of the Chairman's finding at paragraph 19, for it is acknowledged that if this is displaced, the appeal must fail and the Claimant remains diagnosed as disabled.

The Claimant's case

19. I will take this first because this is the order of the batting presented to me today. The central proposition advanced by Mr Mulholland is that each of the reasons given by the Chairman is insufficient to sustain a judgment against the evidence. First, as to the antiquity of the report, both experts had agreed that dyslexia is permanent and unchanging.
20. Secondly, as to the definition of whether this was severe dyslexia, the Chairman erred because there is no necessity for a comparative analysis once the vehicle for the evidence for severe dyslexia arrives at the Employment Tribunal. The effect of disability can be inferred from the diagnosis that the dyslexia is severe.
21. Thirdly, the inappropriateness of using a child's test was not supported by any of the evidence or of cross-examination.

The Respondent's case

22. On behalf of the Respondent, it is contended that the guiding principle is that the Tribunal should adopt an inquisitorial approach following the four-stage test which I set out from Goodwin v Patent Office [1999] IRLR 4 (EAT Morrison P and members) at para 22 below . The Tribunal must decide points 2 and 3. This is not a deemed condition, for the statute does, indeed, deal with deeming conditions such as those of cancer and muscular dystrophy (Schedule 1 para 8). There is a role for the assessment by an Employment Tribunal and it must make up its own mind.

The legal principles

23. The legal principles to be applied appear to me to emerge from the following authorities. In Goodwin above, the EAT decided this:

"The statute requires the tribunal to look at the evidence by reference to four different conditions:

(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".

Attention should be given to the emphasis there given to the use of the Guidance.

"23. The EAT repeats what it has said on a previous occasion, namely that, at least during the early period of the Act's operation, reference should always be made, explicitly, to any relevant provision of the Guidance or Code which has been taken into account in arriving at its Decision. Section 3 of the Act empowers the Secretary of State to issue guidance on the disability issue. And in addressing the substantial and long-term conditions (see below), a tribunal 'shall' take such guidance into account. But, as the Guide makes clear, in many cases the question whether a person is disabled within the meaning of the Act can admit of only one answer. In such clear cases it would be wrong to search the Guide and use what it says as some kind of extra hurdle over which the applicant must jump. The Code gives practical guidance and will be found helpful and informative in almost every case under the Act. Tribunals will bear in mind that a breach of a relevant provision of the Code 'shall be taken into account in determining any question'".

24. When a Tribunal is unclear about difficult matters such as medical diagnosis, it is prudent for it to adjourn to consider whether further medical material could be available (see, for example, the approach taken by Lindsay P and members in College of Ripon and York v Hobbs [2002] IRLR 185 at paragraph 12).
25. An Employment Tribunal, like any court, is bound by the approach of the Court of Appeal in dealing with evidence of an expert nature; so, in R (H) v Ashworth Hospital Authority [2003] 1 WLR 127, the Court said this:

80. … They must at least indicate the reasoning process by which they have decided to accept some and reject other evidence. What this court said in Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 373 at 378, [2000] 1 WLR 377 at 381-382 is as apt in relation to the decisions of tribunals as it is to lower courts generally. In giving the judgment of the court, Henry LJ said that the reach of what is required to fulfil the duty to give reasons depends on the subject matter:

'Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases.'

[81] In my view, this passage applies with even greater force where the tribunal decides to reject most of the expert evidence, and adopt the minority view. … If the tribunal decided to reject all of that evidence, they were obliged to give cogent reasons for doing so. It is to be supposed that, before deciding to reject the evidence of the experts who opposed discharge, they carefully considered each report as well as the oral evidence given by Dr Croy."

26. Finally, as was explained in Kapadia v London Borough of Lambeth [2000] IRLR 14 EAT, (HHJ Peter Clark and members) at paragraph 32, difficulties can arise leading to misdirection where medical evidence is not accepted (see paras 11 and 32).

Assessment and conclusions

27. Applying the above principles to the issue in the case, I prefer the arguments of the Claimant and have decided that the appeal should be dismissed. First, I will deal with the evidence of the experts adopting Mr Snodgrass's helpful definition (para 4 above).
28. As can be expected, some scientific testing is available in cases where dyslexia is said to play a part. Ms Pilkington carried out a number of the standard tests. She came to the conclusion that the Claimant was severely dyslexic. She did so, having adopted a standard definition of dyslexia, which is not challenged. She noted that specific learning difficulties (dyslexia) were found in the Claimant in respect of all but one of the nine criteria and these are as follow:

"*Significant underachievement in one or more of the following areas: .

*Reading; *Spelling and Writing; *Number Skills

in relation to Alastair's other, unaffected abilities; and

Presence of one or more diagnostic features, including:

*Poor short-term auditory-verbal memory

*Slow speed of information processing

*Difficulty with phonological processing (skills relating to the structure of sounds in speech)

*Difficulty with skills involving written symbolic routines

Difficulty with the skills of motor planning or control".

29. On the way to reaching that clinical judgment, the psychologist set out her findings, which included positioning the Claimant amongst his peers by age. She concluded that, for example, he significantly under-achieved at reading, putting him at best no higher than the bottom 7%. In spelling: he fared worse. He was in the bottom 2%. With other matters, these contributed to her view that there was very strong evidence for the sever dyslexia which she ultimately attributed.
30. When Mr Snodgrass gave his evidence before the Employment Tribunal, he produced a written report and had no hesitation in agreeing with Ms Pilkington's conclusions. He said this:

"7.1.2 ….Although this assessment was made in 2000, the neurological underpinnings, resulting in the characteristics of Dyslexia, will remain the same and will continue to affect Mr Bayley's behaviour (and subsequently this day to day activities) throughout his lifetime. Because Mr. Bayley's Dyslexia has already been established and it will have no an effect on his behaviour throughout his lifetime, I have not used any further confirmatory tests, as they would provide no further useful information on the issue.

7.1.3 These results also indicate that, jobwise, Mr Bayley is likely to have problems with:

remembering instructions given verbally

hearing verbal instructions correctly

speed in understanding and responding to instructions

speed with manual tasks".

31. Dr Wilson's approach as an occupational physician partly embodied a clinical diagnosis, for he answered specific questions under the Act and said this:

"1 I conclude that the Claimant is suffering from a mental impairment.

2. The mental impairment from which the Claimant suffers is Dyslexia (ICD-10 R48)

3 The mental impairment dates from birth.

4. The Claimant does have a clinically well recognised medical condition

5. The Claimant's medical condition does exist now

6. The symptoms suffered by the claimant are difficulty with reading, writing and number manipulation relative to his peer group.

7. The condition is not progressive or recurring but constant. His symptoms are likely to remain at approximately the current level of severity permanently.

8. The effects of the condition on the Claimant's day to day activities are as follows:

…

g. Memory or ability to concentrate, learn or understand - The Claimant displayed a good and consistent memory of chronological events dating back over a decade. His short term memory was also good. He reported that he is able to remember the names of familiar people, he is able to follow a recipe and he can adapt to minor changes such as starting a new job. The medical condition has a permanent effect on his ability to learn language and number skills. This has manifested itself in a lower level of achievement in these skills then his peer group throughout his educational life.

…

9. The Claimant is not receiving any specific treatment for his medical condition at present. Therefore treatment is not having any effect on his medical condition.

10. The prognosis for this medical condition is that his current level of functional loss is likely to continuing permanently.

11. …Based on this list from the guidance, since the Claimant's medical condition does not cause any of these effects, it is reasonable to conclude that the effect of the Claimant's condition on normal day to day activities is not substantial. However the lists of examples are not exhaustive; they are only meant to be Illustrative. The guidance states that 'severe dyslexia would clearly be covered by the definition and is not included among the examples'. The educational psychologist concluded that the Claimant has severe dyslexia. However, it is not clear from her report how the judgement of severity was reached and whether that judgement of severity was not a similar nature to that for 'substantial' under the Disability Discrimination Act. Overall, it is difficult to reach a clear conclusion with regard to whether this Claimant has a substantial adverse effect as defined by the Disability Discrimination Act. On the balance of probabilities, using the examples in the guidance issued by the government, I conclude that the effect is not substantial. However, I am aware that the tribunal is not constrained by the guidance and the tribunal has the ultimate responsibility of determine whether a disability exists or not".

32. What is interesting is the way in which that difference of opinion, if that is the correct approach to those reports, played out at the Employment Tribunal. Mr Snodgrass gave evidence and according to the agreed notes, accepted the conclusions of Ms Pilkington and said he had no doubt as to the accuracy of the results.

"Once a diagnosis is made, it is a lifetime diagnosis…it is for life; it does not go away".

He was asked about the slightly different tests used for adults and children because Ms Pilkington had conducted the children-based test known as the Wechsler test. His conclusion was that this has the same properties (the items in it are gauged to adult terms for an adult test). He was asked whether if the adult test had been done, the result would have been any different; and the answer was "no". It will be borne in mind that when the test was done by Ms Pilkington the Claimant's age of 13 years, four months and the examination by Mr Snodgrass was when he was 17. It will be perceived that Mr Snodgrass adopted the methodology and conclusions of Ms Pilkington.

33. Dr Wilson was cross-examined by the Claimant's father and said this:

"Is it your contention, as an expert, that the Claimant is not severely dyslexic or that you don't understand it?

The latter, because it is not medically defined.

Do you dispute Ms Pilkington's definition?

I don't know any way of knowing what it is. I don't fully understand. I would need to know how she came to that definition".

34. It seems to me that the correct approach to this collection of evidence is, as Mr Mulholland put it, there was no challenge to the methodology and conclusions of competing experts. Ms Pilkington and Mr Snodgrass spoke with one mind. Dr Wilson confessed his inability to understand the way in which the definition of severe dyslexia had occurred. With respect to Dr Wilson, this is a field in which clinical psychologists, both adult and child, contribute uniquely. The testing is done according to world recognised international standards and a clinical diagnosis is obtained. There is no doubt that these experts, seeing children and juveniles predominantly, and adults too, will have in mind, by reference to the results of tests, whether they fit into a category of mild, medium or severe. In this case, we are only concerned with severe and have not seen any other gauge.
35. Dr Wilson acknowledged that he did not understand this method or how the Claimant could be described as severely dyslexic. As I read his evidence, this is not a dispute on the medical evidence available, but simply a matter of language. Indeed, Dr Wilson looks at the word in the Disability Discrimination Act 1995 and wondered whether it was the same as for substantial. Again, looking at the matter forensically, there is nothing in the material which has been put before me to indicate any challenge to the antiquity of the report. Indeed, since it is now common ground that the effect of dyslexia is lifetime, although coping strategies can mitigate it, a report five years ago, done according to acknowledged standards, will not fade.
36. Secondly, there is evidence by Ms Pilkington as to the matters she took into account in providing her definition of severe dyslexia. The arithmetic which I have set out, placing the Claimant so close to the bottom of his peers, can aptly be described as severe. It is true that she does not say where other adjectives might fall: medium, low, high or whatever; but on any account of the results of her tests, "severe" is the apt conclusion.
37. Thirdly, there was no criticism beyond what I have recited of the fact that the Wechsler test for children was used. Thus, the three grounds on which the Chairman was indisposed to this evidence seem to me to be unsustainable.
38. The simple approach of Mr Mulholland to the issue the Chairman defined is this: once a diagnosis is achieved of severe dyslexia, there is no need for the Claimant to surmount further obstacles. Citing Morrison P in Goodwin, the guidance is not there in order to create further hurdles for a Claimant. I agree. It seems to me that once it is accepted that there is severe dyslexia, then there is disability within the meaning of the Act. To an extent, that was accepted in debate by Mr Peacock, but does this stultify the role of an Employment Tribunal? In my judgment, it does not. It is still open for examination as to whether or not the methodology was correct in arriving at the judgment of a clinical diagnosis of severe dyslexia. What a particular person may understand to be severe may also be explored. But once it has been accepted on the evidence that there severe dyslexia, it follows from the way this is presented in the Guidance that it is not necessary to dwell further on the examples. Paragraph C12 of the Guidance makes that clear by a grouping together of other forms of disability from which it is obvious that if a person has one of these conditions, they will suffer an impairment of normal day-to-day activities which is substantial.
39. In arriving at this conclusion I looked at the provisions relating to severe disfigurement (para 11 above). It is not necessary to decide this, but there the word "severe" is capable of a more general assessment by the Employment Tribunal, according to its own observation and whether for example a broad scar is on the face or on the buttock. Severe disfigurement is less likely to be judged by a clinical diagnosis than severe dyslexia, and so it would be necessary for the Employment Tribunal to consider if the former did have a substantial effect on day-to-day activities.
40. That, it seems to me, is the answer to this case. Once the evidence, which I hold to be all one way, of severe dyslexia was presented to the Chairman, her task in deciding the preliminary issue was simple. If she did not accept that this was the correct diagnosis she should have provided reasons. According to the judgment in the Ashworth case cogent reasons must be provided for rejecting evidence. Guided by the careful analysis given by Mr Mulholland of the three reasons, I accept that none of them is sustainable. Thus we are left with unchallenged evidence and certainly no sound reasons given by the Chairman to reject the finding by the clinical psychologists of severe dyslexia.
41. In my judgment, the error by the Tribunal Chairman in this part of her support for the decision on disablity was in elevating those three matters for which there was no sufficient forensic groundwork as reasons for rejecting the one-way evidence of the clinical psychologists. That means that the decision ought to be capable of being shifted, but since it is the agreed position today that I need not examine any further this matter (because the Respondent concedes that this conclusion would control the conclusion to the case) I hold that the Chairman's ultimate judgment that the Claimant was disabled was correct, albeit for reasons different from those which she did.
42. I would very much like to thank both of the advocates today for the careful way in which they presented their written and oral submissions.