United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A SAWYER (The Appellant in Person)
For the Respondent	MR D BASU (of Counsel) Instructed by Messrs Field Fisher Waterhouse LLP Solutions Solicitors 35 Vine Street London EC3N 2AA)


 


SUMMARY

DISABILITY DISCRIMINATION: Disability

PRACTICE AND PROCEDURE: Striking-out/dismissal

The Employment Judge correctly struck out the Claimant's case as it was not reasonably arguable, on the evidence at a PHR, that the Claimant's intolerance to temperatures below 27^oC was a disability within the DDA 1995.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about the definition of disability for the purposes of the Disability Discrimination Act 1995. I will refer to the parties as the Claimant and the Respondent.

Introduction

2. It is an appeal against the judgment of Employment Judge Williams sitting alone at Watford, registered with reasons on 7 January 2008 at a PHR.
3. The Claimant reminds me he is a litigant in person, albeit blessed with a law degree and further qualifications. The Respondent was represented by a solicitor and today is represented by Mr Dijen Basu of Counsel.
4. The Claimant claimed that he was disabled by reason of a condition which is affected by temperatures below 27 degrees Celsius. The Respondent sought to test the disability issue at a PHR and to strike out the claim as having no reasonable prospect of success under Rule 18. The Employment Judge acceded to that submission. The Claimant appeals.
5. The appeal on the papers came before HHJ Burke QC, who decided there should be a preliminary hearing which he himself conducted. He was minded to use one of the powerful tools in the hands of a procedural judge and to ask the Employment Judge for further reasons, for they appeared to be jejune. The Employment Judge replied twice. I will take both the substantive reasons, the two replies to the Employment Appeal Tribunal, and the refusal by the Employment Judge to review his judgment, together as being the reasons for the judgment against which this appeal is weighed.
6. The essential issue at the PHR was to determine whether the Claimant had a disability for if he did not the claim had no reasonable prospect of success.

The facts

7. The facts can only briefly be stated since there was no full trial. The Claimant worked for a number of years for the Respondent in one of its offices. From 2002 to 2004, he appears to have suffered various chest conditions but between April 2004 and September 2007 he was provided at his workplace by the Respondent with a portable heater. Dressed heavily in underclothing and outer garments, with the assistance of the heater, he maintained a temperature of 27 degrees Celsius and, apparently, did not suffer from any chest conditions from April 2004 to September 2007. Then it was taken away, and on that basis he contends he was discriminated against on the grounds that he is disabled.
8. The Employment Judge recorded the submissions of the Respondent's representative together with the submissions of the Claimant in the following way (the paragraph numbering is corrected):

"2. He maintains that he did not suffer from bronchitis and breathing difficulties between April 2004 and September 2007 due to the portable heater. He did not claim that he was suffering from bronchitis or breathing difficulties when he was present before the Tribunal and indeed did not appear to be suffering in that way.

3. The Respondent submitted quite simply both in the ET3 to the Tribunal on the 30 November that hay fever is expressly excluded under the Disability Discrimination (meaning of disability) Regulations 1996 (SI 1996/1455) and that the Claimant had not alleged that his other conditions were aggravated by hay fever.

4. Further the Respondent submitted that the Claimant's bronchitis or breathing difficulties were not disabilities within the meaning of the act and pointed out that the Claimant himself conceded that he did suffer those conditions between April 2004 and September 2007.

5. The Claimant's argument essentially was that the Act specified "any physical or mental impairment" and in his view he had an impairment due to the difficulties which he said he suffered from.

6. Having considered the papers before him and listened to the representations of the parties the Chairman was satisfied that it did not appear that the claim had any reasonable prospect of success since it did not appear that the Claimant was even on the face of it disabled within the meaning of the Act. In those circumstances pursuant to rule 18 and rule 20 of the 2004 Rules the Tribunal made a Strike Out Order."

9. In answer to questions directed by HHJ Burke QC, the Employment Judge said this:

"The question of the EAT was:-

Question:

Did the Tribunal decide pursuant to the Respondent's submission set out in paragraph 4 of the Tribunals Reasons that bronchitis and breathing difficulties were not disabilities within the meaning of the Disability Discrimination Act 1995, and if it did so decide what were the Tribunal's reasons?

Answer:

The Respondent's submission was not that bronchitis and breathing difficulties could not be disabilities within the meaning of the DDA 1995, rather that in this case the Claimant's claim that he suffered from bronchitis or breathing difficulties were not disabilities within the meaning of the Act because:-

(a) The Claimant appearing before the Tribunal did not obviously appear to be suffering form bronchitis or any breathing difficulty and no medical report was available for the Tribunal beyond a short scribbled note form the Claimant's GP

and

(b) The Claimant himself conceded at the hearing that he did not suffer either of those conditions between April 2004 and September 2007. Thus, they argued there was no long term impairment and on that basis the impairment, if such it was (and this was not conceded by them) failed to come within the definition of disability."

I hope that that clarifies the slightly ambiguous effect of the wording that I have used in paragraph 4. If anything further is needed, please let me know."

10. The basis of the Claimant's case was a two-part medical note dated 11 November 2005. Both parties today have been anxious to adduce new material for me. On behalf of the Respondent, my attention has been directed to the physical presentation of the Claimant, bundled up as he is in a top coat and woolly hats.
11. The Claimant sought to put forward three additional documents and to further explain the medical certificate:

"To DWP Wembley

Re. Mr Alwyn Sawyer. 124 Jefferies House. Stonebridge.

This is to certify that Mr Sawyer suffers from recurrent tonsillitis when he is exposed to cold climate in the home (or) work place. I recommend that necessary heating provision be facilitated in his work place.

Thank you.

Signed Dr M Khan

Craven Park Health Centre. Knatchbull Road. London NW10 8XW"

12. The Claimant told me and the Employment Judge that two different people filled in this document. The first was by Dr Khan, the treating physician who saw the Claimant on 11 November 2005 and the second was another doctor in the practice, Dr Bathool, who added an inscription at the end, either on 12 or 13 November 2005.
13. The Claimant lodged his claim on 25 October 2007, some two years after the medical evidence was created. He alleged his disability consisted of the following:

"I suffer from bronchitis, breathing difficulties and hay fever. The first two disabilities triggers when the place/room is cold."

14. In additional documents sought to be placed before me today, different conditions are exemplified. Mr Basu opposed the application but did not oppose my reading of these documents provisionally, doing the best I could without making a formal judgment, without prejudice to his argument that they were not exigible.
15. The basis of the Claimant's application is that they contain evidence of the continuation of the condition manifested in 2005 attested to by the medical certificate. He contends that the order of HHJ Burke QC should be relaxed to bring this material within it. Judge Burke, in accordance with the usual practice at the Employment Appeal Tribunal, made specific orders for the presentation of new evidence and this requires the applicant to show that the evidence could not have been obtained with reasonable diligence for use at the Employment Tribunal; that it is relevant and would probably have had an important influence on the result of the case; and that it is, apparently, credible. He relies on the first and the third. Mr Basu disputes them.
16. The material consists of a letter of 28 November 2007 from Dr Khan indicating a number of specific diagnoses. Attached to it is a report from Vena Horrow, Occupational Health Advisor in ATOS Healthcare, who are engaged by the Secretary of State. This is dated 5 July 2008.
17. In my judgment, this material does not fall within the provisions of the Practice Direction nor the Judge's order at paragraph 10. The material could easily have been obtained from Dr Khan prior to the PHR; certainly his own medical opinion could have been. The material has not been disclosed to the Respondent who plainly would wish to consider the instructions which he gave to ATOS and any further report which ATOS gave. Mr Basu was wholly unable to deal with this material today.
18. A large number of steps has unusually been taken in this case, at any one of which this material could have been adduced. I have indicated the carousel of further reasons and of further consideration between the Employment Judge and the Employment Appeal Tribunal. There must have been seven or eight judicial considerations of the Claimant's case. None of this material was before either of the learned judges and in my view the first requirement is not satisfied.
19. Mr Basu was not able, formally, to make submissions as to whether the material was inherently credible but, doing the best he could, I see some force in his argument that the first line of the doctor's opinion is incoherent and may well suggest difficulties in credibility. For those reasons I refuse to reopen the material in the light of the documents put before me and even if the direction to the Occupational Health Adviser came after the hearing I do not know whether that could have been produced more quickly and so I refuse to allow it.
20. On the basis of the reasons given by the Judge, therefore, the claim was struck out.

The legislation

21. The legislation in this case is not in dispute. Section 1 of the Disability Discrimination Act 1995 defines disability (and it is refined by schedule 1, paragraph 1).

"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."

22. The principal issue in determining whether a disability has a long-term substantial effect was set out by Morrison P and Members in Goodwin v The Patent Office [1999] ICR 302 in the following terms:

"Section 1(1) defines the circumstances in which a person has a disability within the meaning of the Act. The words of the section require a tribunal to look at the evidence by reference to four different conditions. (1) The impairment condition. Does the applicant have an impairment which is either mental or physical? (2) The adverse effect condition. Does the impairment affect the applicant's ability to carry out normal day-to-day activities in one of the respects set out in paragraph 4(1) of Schedule 1 of the Act, and does it have an adverse effect? (3) The substantial condition. Is the adverse effect (upon the applicant's ability) substantial? (4) The long-term condition. Is the adverse effect (upon the applicant's ability) long term?"

23. Medical treatment is also relevant for, in paragraph 6 of schedule 1, there is this:

"Effect of medical treatment

(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-today activities, but for the fact that measures are being taken to treat or correct it is to be treated as having that effect.

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

24. As I have indicated, an effect must be long term and substantial for an impairment to count as a disability.
25. The procedural side of this case is regulated by rules 10 and 18 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 which give power to a procedural judge to determine whether the claim has any reasonable prospect of success and if it does not to strike it out. What is different about the ET Rules from that of the CPR is that live evidence can be adduced specifically under the rule and it seems to me that what the Judge conducted here was a hearing on live contested evidence for the purposes of reaching a decision on the principal ingredient of the statute: is the Claimant disabled? No point has been made to me about the appropriateness of this procedure or any unfairness in it.

The Claimant's case

26. The Claimant submits that the simple solution to this case lies in the history. He told a GP about his work environment. The symptoms were alleviated for three and a half years when he was provided with a portable heater. When it was taken away he became ill and thus he was disabled. He had an impairment. He was anxious to put in front of me to demonstrate a logical proposition, six medications which he takes and two woolly hats which he wears one atop the other. The logical proposition is this: if I am not ill, why am I prescribed six sets of medication? The Claimant submits that he had an impairment which is that he becomes sick when at work he is exposed to temperatures below 27 degrees Celsius.

The Respondent's case

27. On behalf of the Respondent, it is contended that the Employment Judge, in the expanded Reasons which he ultimately gave, is correct. No impairment was found even before any examination of the long-term effects of it. The Judge was correct in testing the material which was before him and in finding that there was no impairment.

Discussions and conclusion

28. In my judgment, Mr Basu is correct and I will dismiss the appeal. The essential determination was whether the medical evidence disclosed no reasonable case. As with the Judge, I hold that the medical evidence is difficult to understand. The only medical certificate before the Judge pre-dated the claim and the hearing by two years. It is from a time when the Claimant, by his own account, was not suffering at all for between 2004 and 2007, he was provided with a heater at work, had a very warm home, and did not suffer the conditions. So, the doctor was, it seems to me, operating on what the Claimant told him would be the effect of his condition if the measures taken to protect him were taken away.
29. In any event, there is a very substantial gulf between the medical conditions described by Dr Khan and, two days later, by Dr Bathool and that is when the claim for tonsillitis, for example, goes out of the picture. Hay fever is not relevant since it is by statute excluded and so the primary diagnosis of recurrent tonsillitis is not the subject of the claim and, therefore, cannot be the cause of an impairment.
30. Looking more widely at the postscript added by Dr Bathool of "developing recurrent cold and tonsillitis chest infections", infections, by definition, come and go. That he develops a cold or a chest infection when the room temperature drops seems to me not to be an impairment or at least not an impairment within the meaning of the statute. Again, the doctor was looking at this in 2005 when the Claimant was not presenting with any of these infections.
31. Put simply, this material did not disclose a case with a prospect of success that the Claimant was disabled by an impairment which could be diagnosed from which there were substantial long-term effects. Even today, the Claimant seeks to expand his case and has given a further list of ailments which he has when he is exposed to temperatures below 27 degrees Celsius. Although I am flexible in the material I hear, this case had to be tried on the basis of the medical material and other evidence adduced at the PHR in November 2007 and the Claimant failed to do that.
32. I am grateful to the Employment Judge for providing the further reasons which HHJ Burke QC prescribed. There is no dispute as to the correctness of this or of the procedure at a PHR. I see no error of law in his approach. The appeal is dismissed.