United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS A JONES (Solicitor) Messrs Maclay Murray and Spens LLP Solicitors Quartermile One 15 Lauriston Place Edinburgh EH3 9EP
For the Respondent	MR A HARDMAN (Advocate) Instructed by: Messrs Levy & McRae Solicitors 266 St. Vincent Street Glasgow G2 5RL


 


SUMMARY

DISABILITY DISCRIMINATION: Disability

Employment Tribunal found that a police constable who suffered from ME and had mobility problems between about 2am and 4am when working night shift as part of a "treble two system" (2 day shifts followed by 2 back shifts followed by 2 night shifts then four days off) was disabled. On appeal, the Respondent argued that the Tribunal should have determined that the Claimant was not carrying out normal day–to-day to activities when he experienced mobility problems. Appeal refused.


 


THE HONOURABLE LADY SMITH

INTRODUCTION

1. This is an appeal from a judgment of the Employment Tribunal sitting at Glasgow, Employment Judge Ms S Maclean, registered on 16 May 2008, following a pre hearing review on the issue of whether or not the Claimant was disabled at the relevant time. The Tribunal found in favour of the Claimant.
2. We will continue to refer to parties as Claimant and Respondent.
3. The Claimant was represented by Mr Hardman, Advocate, before the Tribunal and before us and the Respondent was represented by Mr A Sutherland, solicitor, before the Tribunal and by Ms A Jones, solicitor, before us.

BACKGROUND

4. The background facts can be summarised as follows.
5. The Claimant was appointed as a police constable on 7 November 2005 after having previously been employed by the Respondent as a Special Constable and as a Custody Officer, dating back to 2001. He was a probationer. He was due to start a training course at Tulliallan Police College on 14 November 2005. He attended his general practitioner on 10 November 2005 and that doctor suggested he might have bowel cancer. He was upset and distressed. He did not, in the event, attend that Tulliallan course.
6. On about 8 December 2005, the Claimant consulted his general practitioner, Dr Sabur, with symptoms of fatigue, weakness, bowel symptoms, a flu like feeling and myalgia. Dr Sabur diagnosed that he may have fibromyalgia.
7. From 27 December 2005 , the Claimant was posted at Sanquhar and worked a treble two shift system i.e. two days day shift followed by two days back shift followed by two days night shift, followed by four days off.
8. By the end of January 2006/early February 2006, the Claimant was struggling to complete night shifts. His condition was extreme from around 2am to 4 am. He walked at slow pace, needed assistance or a hand rail to climb stairs, required to be driven home at times because of difficulty in driving and required help with undressing when he got home, at times.
9. The Claimant was free of symptoms between March and the beginning of May 2006. At that time he did not work night shift; he was working day shift only.
10. In May 2006, the Claimant was transferred to Dumfries and was put on full duties, including night shift on the same system as before. The symptoms he had experienced between January/February and March reappeared and at times he could not finish his shift. The Respondent adjusted his night shifts so as to allow him to finish early, at 4am.
11. Matters continued in the same way until he was dismissed in February 2007. That is that, at times (i.e. not at the end of every night shift), the Claimant suffered the mobility problems which we have described, in the last hour or two of the night shift. When the symptoms were at their worst he would be bed ridden at home the following day.
12. The Claimant's employment was terminated on 23 February 2007. He claims that he was discriminated against on grounds of disability in respect that he was not allowed to attend a probationer training course at Tulliallan and in respect that his service was terminated on account of his inability to carry out 24 hour operational duties.

RELEVANT LAW

13. Section 1 of the Disability Discrimination Act 1995 ("DDA") 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."

14. The relevant parts, for this case, of Schedule 1 of DDA are:

"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 the person affected.

(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.

(3) …

(4) …

…

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

…"

15. Section 3 of the DDA empowers the Secretary of State to issue guidance about matters to be taken into account in determining whether a person is disabled. The up to date guidance, which is the guidance that is relevant for the purposes of the present case, is that which was issued in 2006. Like all such guidance it is not an authoritative statement of the law and that is recognised in the "Status and Purpose" section at the beginning of the document. It is, however, a useful guide. In particular, it seeks to assist by providing examples of what might and what might not amount to disability and highlights the key principles to bear in mind. For instance, at D4, it points out that the list in paragraph 4(1) of Schedule 1 to the DDA is not a list of day–to–day activities; they refer to it as a list of capacities which is, we agree, a helpful characterisation. D4 continues:

"In general , day-to– day activities are things people do on a regular daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport and taking part in social activities."

We agree. Thus, walking, climbing stairs, driving and undressing can all be described as being day–to–day activities. What then of the addition of the adjective "normal"? D5 and D6 of the Guidance suggest:

"D5 The term 'normal day-to-day activities' is not intended to include activities which are normal for only a particular person or small group of people. In deciding whether an activity is a normal day-to-day activity, account should be taken of how far it is normal for a large number of people, and carried out by people on a daily or frequent and fairly regular basis. In this context, 'normal' should be given its ordinary, everyday meaning.

D6 A normal day-to-day activity is not necessarily one that is carried out by a majority of people. For example, it is possible that some activities might be carried out only, or more predominantly, by people of a particular gender, such as applying make-up or using hair curling equipment, and cannot therefore be said to be normal for most people. They would nevertheless be considered to be normal day-to-day activities."

16. A question may arise as to whether work of a particular form can be a normal day-to-day activity. If one takes, for example, a skilled silversmith or a watchmaker, the activities involved in the employee operating his specialised tools to craft fine objects of some precision will be a normal day-to–day activity for him. But is it a normal day-to-day activity in terms of s.1 of the DDA? We are satisfied that the answer to that question would be: no. A useful explanation is provided by D7 of the Guidance:

"D7 Normal day-to-day activities do not include work of any particular form because no particular form of work is 'normal' for most people. In any individual case, the activities carried out might be highly specialised. For example, carrying out highly delicate work with specialised tools may be a normal working activity for a watch repairer, whereas it would not be normal for a person who is employed as a semi-skilled worker. The Act only covers effects which go beyond the normal differences in skill or ability."

Separately, the Guidance refers to the need, when assessing whether an impairment has a substantial adverse effect, to take account of factors such as the time of day or night (B10).

17. As discussed in the case of Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763, matters have changed since the coming into force of the original DDA in respect that there is now also relevant European legislation in the form of the Council Directive of 27 November 2000 (2000/78/EEC) "Establishing a General Framework for Equal Treatment in relation to Employment and Occupation" which requires measures to be taken to combat disability discrimination in the field of employment. DDA was amended by the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003/1673) and in interpreting the legislation, the need to give effect to the Directive requires to be borne in mind. We agree that the articulation of relevant principle set out in the case of Chacon Navas v Eurest Colectividades SA [2006] IRLR 706 is, in the circumstances, binding on us. That means that we should have regard to the explanation of the aim of the Directive by the European Court of Justice in that case:

"43 Directive 2000/78 aims to combat certain types of discrimination as regards employment and occupation. In that context , the concept of 'disability' must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life."

18. Further explanation is provided at paragraph 45:

"The importance which the Community legislature attaches to measures for adapting the workplace to the disability demonstrates that it envisaged situations in which participation in professional life is hindered over a long period of time. In order for the limitation to fall within the concept of 'disability' it must therefore be probable that it will last for a long time."

19. We also observe that these statements by the court were made against the background of the opinion of the Advocate General in which the following comments are made:

" …the concept of disability in Directive 2000/78 is a Community legal concept which must be interpreted autonomously and uniformly throughout the Community legal system, with account taken of the context of the provision and the purpose of the legislation in question." (paragraph 64)

20. What we take from the court's use of the term "professional life" is that when assessing, for the purposes of section 1 of the DDA, whether a person is limited in their normal day-to-day activities, it is relevant to consider whether they are limited in an activity which is to be found across a range of employment situations. It is plainly not meant to refer to the special skill case such as the silversmith or watchmaker who is limited in some activity that the use of their specialist tools particularly requires, to whom we have already referred. It does though, in our view, enable a Tribunal to take account of an adverse effect that is attributable to a work activity that is normal in the sense that it is to be found in a range of different work situations. We do not, in particular, accept that "normal day-to- day activities" requires to be construed so as to exclude any feature of those activities that exists because the person is at work, which was the essence of the first ground of appeal. To put it another way, something that a person does only at work may be classed as normal if it is common to different types of employment.

The Appeal

21. For the Respondent, Ms Jones' submission was that the case concerned the interaction of a condition from which the Claimant suffers and the profession he chose to follow where the issue was not just the impact of the carrying out of the duties associated with the occupation but the time at which the duties were being carried out. It was accepted that the Claimant suffered from an impairment but the critical issue was whether its effects were such as to invoke the protection of the Disability Discrimination Act 1995. The only time that the Claimant suffered the mobility problems set out by the Tribunal was at the end of and after a nightshift. There was no evidence to suggest that if the Claimant was not at work he would have been similarly affected. In these circumstances, the test for disability could not be satisfied.
22. Reference was made to the case of Chacon and Ms Jones submitted that there was little analysis of what was meant by "professional life". It failed to obviously exclude the specific yet that was plainly necessary. There was also a lack of guidance as to what was meant by "long term". Ms Jones referred, in her written argument, to the reference to the case of Chacon in the recent decision of this Tribunal in Bourne v ECT Bus CIC UKEAT/0288/08/CEA by HHJ Birtles to the effect that driving a bus for an eight hour shift was not a normal day–to–day activity under the Chacon principles. The reference to the comment was evidently intended as supporting her case; whilst we can readily see that driving a bus, like exercising the skill of silversmith or watchmaker, cannot be regarded as a normal day–to-day activity, we do not take from HHJ Birtles comment anything that supports the appeal in this case.
23. Reference was also made by Ms Jones to the case of Law Hospital NHS Trust v Rush [2001] IRLR 611 where it was held that the ability of an employee to carry out normal day-to-day activities in the workplace was relevant to an assessment of the Claimant's credibility. The submission seemed to be that it was only for issues of credibility and reliability that ability to carry out such activities at work could be relevant. We do not agree.
24. Ms Jones drew attention to the vouching of the Claimant's absences and submitted that the Claimant was only absent on six occasions. There was a lack of finding as to how often or on what dates he could not complete the nightshifts, a submission which we were not minded to accept; the picture from the findings was sufficiently clear and it was not necessary for the Tribunal to make findings as to the precise dates on which the effects of the Claimant's impairment were at their most severe. Finally, under reference to paragraph D7 of the Guidance, Ms Jones submitted that shift working was not normal for the majority of people, the inference seeming to be that she submitted that unless a work pattern was common amongst a majority, it could not amount to a normal day-to-day activity.
25. As to the requirement that the effect be a long term one, Ms Jones submitted that the Tribunal had failed to address the issue of how long the symptoms remained severe. There were periods when the condition waxed and waned and periods when the Claimant had no difficulties at all.
26. For the Claimant, Mr Hardman submitted that the Respondent's position did not represent the current law. The Claimant's impairment was in respect of normal mobility. It was not that he could not work nightshifts but that his walking slowed, he had difficulty with stair climbing and he had difficulty with driving at the end of night shifts at about 2am to 4am on occasions and he needed help with undressing when he got home on occasions. Law was authority for the potential relevance of evidence about a Claimant's ability to perform such activities at work. Paterson also supported the Claimant's case.
27. The issue here was, he submitted, whether it was a normal day–to-day activity for a person to be carrying out these activities at 2am–4am. He submitted that all of the above activities were normal for a large number of people and he referred to the many occupations which require people to be at work at that time of night. It was not necessary to show that the majority of the population would be at work. It was enough that there was a significant number of them. Chacon, at paragraph 43, indicated that "professional life" would cover working life in a group of people which included those who may work shifts.
28. As to long term, Mr Hardman submitted that the Tribunal's findings were that the Claimant had a continuing underlying condition which fluctuated in its effects. The effects became manifest in December 2005 and, on the Tribunal's findings, the condition remained with the effects continuing to occur right up until the date of termination of his employment. That was in excess of twelve months.

Discussion and Decision

29. The Claimant submits that the Tribunal erred in law. The law which the Tribunal required to apply to the facts is that set out in s.1 and Schedule 1 of DDA, as discussed in the authorities to which we have referred. Thus the Tribunal required to consider firstly whether the Claimant had an impairment. It was conceded that he did and that it constituted chronic fatigue/myalgic encephalomyelitis, an impairment which manifests itself as pain and fatigue.
30. The Tribunal then had to consider whether that impairment fell within the scope of paragraph 4(1) of Schedule 1 to the DDA. It did, because it affected the Claimants' mobility.
31. Next, the Tribunal required to consider whether the impairment had an effect on the Claimant's ability to carry out normal day-to-day activities. Walking, stair climbing, driving and undressing are plainly normal day-to-day activities. The Tribunal required to go further though and ask whether carrying out these activities at work between 2am and 4am was a normal day–to–day activity. They found that it was.
32. The Respondent's approach is to say that that cannot be so because it was on account of the Claimant being a policeman, a specialised job, that he required to do work at that time of night. Further, he says that even if it is appropriate to look outside the work of the police force and ask whether working at that time of day is normal, it is necessary to conclude that a majority of the working population do so.
33. We reject the Respondent's argument. Night shift working is common in the United Kingdom. Examples of it were referred to in the course of the hearing which included offshore workers, those employed in healthcare and those who work in the emergency services. We can think of many others whether hotel workers, workers in certain factories, haulage drivers and so on. Whilst they do not constitute the majority, we are readily satisfied that there are enough people who work on nightshifts for working at 2am to 4am to be a normal day–to–day activity within the meaning of section 1. When account is then taken of the fact that the activities that the Claimant was carrying out when his impairment had an effect on him were the very ordinary activities of walking, stair climbing, driving and undressing, we have no hesitation in finding that the Tribunal did not err in finding that this part of the test was satisfied.
34. Ultimately, the Claimant's argument seemed to be that this was a case where what was being relied on was an activity which was special to the Claimant's employment. No doubt there are many aspects of a policeman's job which arise only because he is a policeman and he is exercising a special skill required only of policemen; in such a case the test of normal day-to–day activity may well not be passed. However, on a proper analysis, the relevant factors here are those to which we have referred, namely carrying out very ordinary physical activities at work at a time of night when there are many other people in other forms of employment doing the same thing. These are, to our mind, exactly the sort of circumstances that the DDA and the European Court of Justice had in mind.
35. That left the question of whether the effect was a substantial and long term one. It was accepted that not very much was required for an effect to be categorised as substantial. The effect on the Claimant was, when his symptomatology was at its worst, plainly not trivial but of some substance. It was not seriously suggested otherwise. As to the requirement of it being long term, the problem with the Respondent's approach, which founded on the fact that the effects waxed and waned, was that it failed to recognise that the Tribunal found, on medical evidence, that there was a consistent and persistent underlying condition and that, in such circumstances, paragraph 2(2) of Schedule 1 of the DDA means that symptoms of substance which wax and wane will be treated as continuing. Even testing matters by reference to the first date when the Claimant consulted a doctor about his symptoms (rather than the history he gave that doctor, which was of symptoms dating back for three months) the condition persisted for more than twelve months on the Tribunal's findings, and was present at the relevant dates for the Claimant's claim and gave rise, on numerous occasions, to symptoms which were plainly such as to be a substantial adverse effect. We have no difficulty in finding that the Tribunal did not err in this respect either.

Disposal

36. In these circumstances, we will pronounce an order dismissing the appeal and remitting the case to the Tribunal to proceed as accords.