United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0400/10/JOJ

 

 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 

 

                                                                                                                At the Tribunal

                                                                                                                On 8 February 2011

 

 

 

Before

THE HONOURABLE MRS JUSTICE COX

(SITTING ALONE)

 

 

 

 

MR M AHMED                                                                                                      APPELLANT

 

 

 

 

 

METROLINE TRAVEL LTD                                                                             RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

 

 

 

                                              APPEARANCES

 

 

 

 

 

For the Appellant	MISS KATE KOCHNARI (of Counsel) Instructed by: Selvarajah & Co 4 Honeypot Lane Kingsbury London NW9 9QD
For Respondent	MR DANIEL DYAL (of Counsel) Instructed by: Kimbells LLP Power House Harrison Close Knowhill Milton Keynes MK5 8PA

 

 

SUMMARY

DISABILITY DISCRIMINATION – Disability

 

The Claimant appealed against an Employment Tribunal decision, on a pre-hearing review, that he did not suffer from a disability within the meaning of the DDA 1995.  The decision was upheld.  The case had turned on the credibility and reliability of the Claimant’s account of his injury and its effects upon him and the ET did not accept his evidence.  No errors of law were identified in the ET’s approach.  Criticism of the ET’s failure to refer expressly to the 2006 Guidance was found to be misplaced in circumstances where the Claimant’s credibility and disputed facts lay at the heart of the case.

 

 

THE HONOURABLE MRS JUSTICE COX

 

1.            This is the full hearing of the Claimant’s appeal from a judgment of the Watford Employment Tribunal, the Employment Judge sitting alone on a pre-hearing review, in which the Judge concluded that the Claimant did not suffer from a disability, for the purposes of the Disability Discrimination Act 1995, and therefore dismissed his claim of disability discrimination.

 

2.            The judgment, with reasons, was promulgated on 21 May 2010.  Both parties were legally represented below, as they have been before me today.  The hearing took place over two days, when the Tribunal heard oral evidence from the Claimant and from Dr Kahtan, and considered additional witness statements, medical reports and documents, including copies of the Claimant’s medical and physiotherapy records.

 

3.            At the conclusion of all the evidence the Judge had the benefit of detailed written submissions on the facts and the law from both sides, and reserved his judgment.

 

The Facts

4.            The background to this claim is that the Claimant, a family man in his thirties, had been working for the Respondent as a PCV bus driver since 1997.  On 28 September 2008 he was on duty and driving a bus in north London when a collision occurred between the bus and a car at a roundabout.  On the Claimant’s own account he was travelling very slowly at the time and fortunately no one was seriously injured or required transfer to hospital from the scene.  The Claimant himself suffered a whiplash injury and attended hospital later that day.  No X-rays were considered necessary at that time and he was given appropriate pain relief medication and advised to see his GP if necessary.  However, the Claimant did not thereafter return to work and he was eventually dismissed from his employment on medical capability grounds, on 27 February 2009.

 

5.            On 21 May 2009 he submitted a claim to the Employment Tribunal complaining of unfair dismissal and disability discrimination.  The claims were resisted and the Respondent denied in particular that the Claimant had a disability.  It was noted that the Claimant had not particularised his complaint of disability discrimination in his ET1 and the Respondent put the Claimant to strict proof in relation to his claim to have a disability for the purposes of the 1995 Act.  This led to the decision to determine this issue at a pre-hearing review.

 

6.            It is clear from the judgment that there was in this case a significant factual dispute between the parties as to the nature of the injury sustained in the accident and as to the effects of that injury upon the Claimant.  The Employment Judge set out the evidence he heard in some detail, given the conflicts he had to resolve.  At paragraph 8 of his judgment he said this:

 

“The Tribunal has been careful to set out a full account of the Claimant’s accident, which occurred on 28 September 2008, the whiplash injury which he sustained and all the events and stages of his subsequent medical treatment from the date of the accident until his dismissal on 27 February 2009 and beyond.  The Tribunal has carefully weighed the Claimant’s evidence and his account of events, including his evidence relating to his alleged disabilities and inability to perform day-to-day activities or return to work as a bus driver.” 

 

7.            I shall summarise the evidence as follows.  In the weeks following the accident the Claimant remained off work.  He saw his GP on a number of occasions, complaining of severe back pain, and was prescribed strong pain relief, which made him drowsy.  A further X-ray taken of his lumbar spine on 14 October revealed that all disc spaces were normal, with no bony pathology seen.  A minor degree of spina bifida occulta was noted in the upper sacrum but it was accepted by both parties that this was of no relevance to the back pain and alleged disabilities arising from the Claimant’s whiplash injury.  At this time the Claimant stated that he was unable to drive his car.

 

8.            The Respondent arranged for the Claimant to be seen by the company GP, Dr Harris, at Medicals Direct on 20 October.  Dr Harris considered that the Claimant would benefit from physiotherapy to help speed up his recovery and enable him to return to full driving duties, which Dr Harris then thought should happen in about two weeks’ time.  A total of ten physiotherapy sessions were sanctioned and these commenced on 10 November.

 

9.            During November and December the Claimant’s GP continued to certify him as unfit for work and regular review meetings were arranged with the Respondent.  By 22 December, since the Claimant’s pain was not significantly improving, despite some short-term benefits after physiotherapy, more hospital tests were to be arranged by the Claimant’s GP.  The Claimant was certified unfit for work due to low back pain for a further four weeks from 30 December.

 

10.         A further review meeting was arranged with the Respondent for 26 January 2009 and a further medical examination was undertaken by Dr Kahtan at Medicals Direct, for that purpose, on 12 January 2009.  Her report was the subject of considerable controversy below.

 

11.         Her examination and meeting with the Claimant lasted for 45 minutes, on her account.  The Claimant was found to have presented his history logically and clearly.  She stated:

 

“All four limbs have normal power, sensation and reflexes.  There are no signs of damage to the nerves…  His posture is poor and there is some mild tightening of the left paraspinal muscles.” 

 

12.         A key part of her report, which was challenged by the Claimant, stated:

 

“Account of a typical day:  Yesterday he rose at 10.00am, had breakfast, took his children to the park for a game of football.  He notes he feels better when moving around.  After football he brought them home and they spent the rest of the day in the house. 

He has been driving his own car when necessary, but prefers his wife to drive. 

He is well-muscled and has gym equipment at home, including weights.  I have asked him to stop using weights at present, and to concentrate on cardio and static resistant work.” 

 

13.         Her diagnosis was stated as:

 

“Mild soft tissue injury to left lower back.”  

 

The symptoms the Claimant described were said to be due:

 

“To a low back strain aggravated by poor posture.”

 

Her recommendation was that the Claimant:

 

“Should return to work immediately as there are no medical contraindications.  His condition will improve more rapidly if he engages in his usual activities, with the exception of weight training.  He should stand up and stretch every time he has a break.  He should use topical and tablet diclofenac for pain relief, with paracetamol if necessary.” 

 

14.         She observed that he needed to work hard on his posture, especially when driving, and she concluded:

 

“There should be no long-term problems arising from this minor back strain, and the outlook is excellent.” 

 

15.         On 5 February Dr Kahtan wrote to the Claimant’s GP because, despite her conclusions and recommendations on 12 January, it appeared that the Claimant had been signed off work by his GP for a further four-week period, at a visit on 28 January.  Dr Kahtan inquired with the GP whether this was due to any new clinical signs or worrying symptoms, or was merely a continuation certificate based on the previous one.  The GP telephoned Dr Kahtan and informed her that the Claimant had not told him that he had already seen Dr Kahtan, but had merely requested a further sick note, which the GP issued without any further examination of him.

 

16.         On 5 February the Claimant attended a further review meeting with the Respondent, by which time the Claimant had had six physiotherapy sessions.  He informed the Respondent that he was now conducting exercises on a cross-trainer, which was building up muscles in his lower back.  He was also performing exercises at home.  He also said that he did not agree with the diagnosis of Dr Kahtan and preferred to be guided by his GP.

 

17.         As a result, a disciplinary and medical capability hearing was then arranged and held on 19 February.  On that occasion a decision was deferred, so that the Claimant could undergo a further examination by the company GP on 20 February.  The Claimant was therefore seen at Medicals Direct on the following day by Dr Schuhwerk, who diagnosed lower and left-sided backache since the accident.  The Claimant reported that in his home he abstained from strenuous jobs and also found driving his own car very uncomfortable after 10 to 15 minutes, so he normally let his wife drive.

 

18.         On examination Dr Schuhwerk found a full range of back movement.  Her main concern, given his occupation, was the regular drowsiness caused by his medication and she reported on this basis that he was currently unfit to work.  In view of the pain having continued for over four months she considered that the prognosis was not very good.

 

19.         The disciplinary capability hearing resumed on 27 February.  The Claimant had seen Dr Schuhwerk’s report.  The possibility of some non-driving work was considered by the Respondent but none was available.  As he was unable to inform his employer when he was likely to be able to return to work, his employment was terminated on medical capability grounds on that day.  His appeal against that decision was dismissed on 10 March 2009.

 

20.         At the hearing before the Tribunal the Claimant was permitted to adduce in evidence a medical report from an orthopaedic surgeon, Dr Chugtai, dated 11 September 2009.  This had been prepared in connection with his personal injury claim, and was not written for the purposes of his claim before the Employment Tribunal.  This report referred to the Claimant’s ongoing symptoms and stated that the domestic activities affected, due to these symptoms, included lifting heavy items, standing for long periods of time and climbing stairs.  The Claimant had undergone an MRI scan of the lumbar spine, which showed normal alignment of the lumbar region.

 

21.         The orthopaedic opinion was that the Claimant’s lumbar musculo-ligamentous strain would take a further six to seven months to resolve and that his long-term job prospects had not been materially compromised by the accident injuries.  The Claimant’s evidence was that after further physiotherapy and epidural injection, he was ready to resume work on 16 March 2010.

 

22.         The Employment Judge set out the Claimant’s oral evidence as to the effects of his injuries on his activities.  Notwithstanding his dispute with Dr Kahtan’s evidence and the fact that the pre‑hearing review had been arranged to determine the question of disability, the Judge noted (with some curiosity, no doubt) that the Claimant, who was legally represented, had apparently not prepared a witness statement, where he might have been expected to set out his case as to disability in some detail.  He did, however, give oral evidence at the hearing. 

 

23.         He said that in February 2009 driving his own car with low back pain made him uncomfortable and that he could not look over his shoulder without suffering sharp pain.  It was very uncomfortable to drive his car for more than 10 to 15 minutes.  Although Dr Kahtan had stated, following her examination, that he was fit to return to work immediately, the Claimant stated that his shifts were for nine hours per day. Even if he had taken breaks and done exercises at the beginning and end of the route, he contended that he would not have been able to drive his bus for nine hours.  At that time putting on his socks in the morning was strenuous and he had to sit down to dress himself in shirt and trousers.  This took 40 to 45 per cent longer than before the accident.  He had to avoid carrying heavy objects and his back strain prevented him from picking up his youngest child, aged three.

 

24.         He confirmed his medication for pain relief.  The Claimant insisted that he had not played football with his children on the day before seeing Dr Kahtan.  He stated in evidence that he was sitting down on a park bench watching his children play football.  The Claimant also denied using weights after his injury, although he agreed that he did have some dumbbells and weights at home and was using a cross-trainer at the Respondent’s physiotherapy unit for two or three months.  This is a piece of equipment used to exercise the arms and legs.

 

25.         In his ET1 the Claimant expressly alleged that Dr Kahtan’s report had been “manipulated and deliberately falsified” in order to achieve his dismissal.  In his evidence, however, it appears that he withdrew that allegation, contending that her report was inaccurate rather than dishonest.

 

26.         He stated that the examination by Dr Kahtan had lasted for only about 1½ minutes.  When he was cross-examined he continued to insist that he had not played football, or said that he had, and even denied that he had taken his four children to the park that morning.  He also denied that he had prepared breakfast or lunch at home.

 

27.         When cross-examined about Dr Schuhwerk’s reference to him “walking okay” in her report, he said that walking was not really ok and that she had not asked him about walking generally, only about walking upstairs.  He said he was able to walk for 20 minutes or so but he could not work or play sport or “care for a dependant”, a reference to being unable to lift his three-year-old daughter. The pain he experienced, he said, was not constant but would be activated by something strenuous or by sitting for a long period.

 

28.         Dr Kahtan gave evidence that she had spent, in all, about 45 minutes with the Claimant and had examined him thoroughly for about 15 of those minutes and had found no clinical abnormalities.  When she had interviewed him, she said she had asked him to describe the activities of a typical day and of the previous day, and she had noted down his statements contemporaneously.  He had described taking his children to the park for a game of football and he definitely told her that he had been playing football and not just watching.  He had also confirmed that he said he felt better when moving around, and said that he was using his home gym on a regular basis and regularly using weights.  She considered that he should have no long-term problems, that the outlook was excellent and that, at the time, the Claimant appeared to accept her findings.  Had he made any objection to her findings or recommendations, she would have recorded this in her report.

 

29.         Asked to comment on the 11 September report of the orthopaedic surgeon, Dr Kahtan observed that he had made no findings in relation to the Claimant’s back pain for the relevant period, that is September 2008 to February 2009; that the report made no reference to any substantial adverse effect on the Claimant’s ability to carry out normal day-to-day tasks, or even the more strenuous ones; and that the reduction of the Claimant’s normal functioning ability was found not to be outside the normal range.  The Employment Judge stated, at paragraph 2.41:

 

“Dr Kahtan expressed her opinion that there was nothing in Mr Chugtai’s report to suggest that the Claimant suffered a disability for the purposes of the DDA.” 

 

30.         Dr Kahtan further pointed out that, when the Claimant was undergoing further physiotherapy between September and November 2009, he was performing shuttles, walking or running across the width of the gym and had completed an impressive 71 step-ups.  The epidural injection which the Claimant had had was, she thought:

 

“a good way to move people on if they have got stuck”. 

 

The Decision

31.         In considering all the evidence, the Employment Judge referred to the thorough and helpful written submissions he had received from both sides, which summarised the issues and the law.  The Judge stated that he had noted the Claimant’s submissions carefully and he pointed out that they had helpfully referred him to the relevant law, to the Guidance, and to case law.  He identified various cases to which his attention had been drawn.  His reference to “Guidance” was a reference to the DWP Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability.  Counsel then representing the Claimant had included extensive references to this Guidance in his written submissions.

 

32.         After directing himself, correctly, to the relevant statutory provisions and to the fact that the Claimant had the burden of proving that he had a disability, the Judge’s conclusions were set out as follows, at paragraphs 9 to 14:

 

“9.  The key findings relevant to the issue of whether or not the Claimant was, at the time of his dismissal, disabled for the purposes of the DDA 1995 are the observations, findings and recommendations of Dr Susannah Kahtan as set out in her handwritten notes and her report dated 12 January 2009, followed by her letter to Dr Peter, the Claimant’s GP dated 5 February.  The contents of these documents are fully set out in the findings of fact and are in the bundle.

10.  The judgment of the Employment Tribunal is that, in being interviewed by Dr Kahtan and explaining his activities of the day before his examination by her, the Claimant gave clear and honest answers to the questions raised by Dr Kahtan.  These activities had included playing football in the park with his children, driving his car when necessary and using his gym equipment at home, including weights.

11.  Subsequently the Claimant subjected Dr Kahtan to allegations that she had falsified her report and findings.  Clearly the Claimant was intent on alleging that he had been a victim of disability discrimination, and the findings of Dr Kahtan were counter productive to this.  However, the Tribunal accepts the evidence of Dr Kahtan in connection with these matters.

12.  The judgment of the Tribunal is that the Claimant had suffered a mild soft tissue injury to his left lower back.  This was not a substantial injury and did not amount to a physical impairment which had a substantial and long-term affect on his ability to carry out day-to-day activities.  It may be that the Claimant was not feeling able to drive a bus on a nine-hour shift, but professional bus driving is not a day-to-day activity.

13.  Dr Kahtan had recommended and encouraged the Claimant to carry out as many of his day-to-day activities as possible, with the exception of weight-training, as this would expedite his recovery.  Even when the Claimant did not accept the recommendations of Dr Kahtan and return to work, and continued to be signed off by his GP, Dr Kahtan had in an extremely professional manner written to Dr Peter fully setting out her findings and recommendations and providing him with an opportunity to comment.  Having written to Dr Peter on 5 February 2009 she then had a telephone conversation with him on 12 February 2009 when Dr Peter told her that he did not examine the Claimant because the Claimant had no new symptoms.  Shortly thereafter the Claimant had been advised by his GP that he should indeed return to work in order to avoid the risk of being dismissed.  However, the Claimant remained away from work, signed off sick and continued treatment.  This included further physiotherapy and what was apparently strenuous gym work including shuttles and step-ups.  The Claimant sought to rely on the findings reported by Dr Schuhwerk, but her main concern was the alleged drowsiness of the Claimant and his complaint of pain.  She had, however, found a full range of back movement.

14. The judgment of the Employment Tribunal is that the Claimant did not suffer from a disability for the purposes of the DDA 1995 and his claim of disability discrimination is dismissed.” 

         

The Appeal

33.         The relevant statutory provisions are these: section 1(1) of the DDA 1995 provides:

 

“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.”

 

34.         Paragraph 2 of Schedule 1 provides:

 

“(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.”

 

35.         On behalf of the Claimant, Ms Kochnari has pursued five grounds of appeal against this judgment.  First, she submits that the Tribunal failed, when setting out its decision, to provide a reasonable explanation of the conclusions reached or of the reasoning process which led to those conclusions.  She submits that it is not clear from reading this judgment how the conclusions were arrived at.  The actual findings of fact are unclear and there is insufficient analysis of the evidence referred to.  Further, she submits, there is no reference anywhere to the Tribunal having used the 2006 Guidance in order to come to a decision.  This, she submits, is contrary to the approach established in Goodwin v The Patent Office [1999] ICR 302, which made it clear that, where the question of whether or not the Claimant is disabled is in issue, the Guidance (then in its original form) should be expressly referred to and used.  This omission was itself an error of law.

 

36.         I have considered Ms Kochnari’s submissions carefully but, reading this judgment as a whole, I cannot accept them.  It is correct, first, that there is no specific reference to the Guidance in the final section of the decision headed “Judgment”.  However, it is not correct to say that there is no reference to it at any point.  On the contrary, the Employment Judge said expressly, at paragraph 3, that he had had careful regard to all the Claimant’s written submissions, which had helpfully referred him, amongst other things, to the Guidance upon which Ms Kochnari relies.

 

37.         The observations and the approach advocated in Goodwin are now longstanding, well established and well understood by Tribunals.  It was especially important for the correct approach to using the Guidance to be understood, when deciding questions of disability, in the early years of the DDA, as the EAT itself recognised in its judgment in that case.  But we are now some 15 years into the life of disability discrimination legislation and I am satisfied from reading this judgment that the Employment Judge understood the potential relevance of the Guidance and the importance of using it correctly.  No error of law is disclosed, in my view, in the failure to refer to the Guidance in more detail, in particular when the Judge’s attention had been drawn to it so extensively in written submissions.

 

38.         There is, however, a further, compelling reason for that conclusion in this case, which really flows from Ms Kochnari’s wider criticisms as to the Tribunal’s reasoning.  Those criticisms are, in my view, misplaced in this case.  Read as a whole it is entirely clear, in my view, why the Judge concluded as he did.  These cases are always fact sensitive and, as Mr Dyal submits, it is important to understand how the battle lines were drawn in this litigation.

 

39.         The case being advanced by this Claimant was that he had sustained a relatively serious whiplash injury, as a result of which he was suffering a serious and ongoing functional deficit, which had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.  In resisting the claim, the Respondent challenged the credibility and reliability of the Claimant’s account and, in so doing, relied heavily on Dr Kahtan’s evidence of the different account that he had given to her, and of her analysis of the nature and extent of his injury, and of the effects that would be expected to flow from such an injury.

 

40.         Ultimately, therefore, the crux of this case was the Claimant’s credibility.  It is clear from the Respondent’s written submissions below that this was the basis of their challenge.  They were not asserting that, if the Claimant’s evidence were accepted, he was nevertheless not disabled within the meaning of the DDA.  If they had been, those would probably be circumstances in which the 2006 Guidance would prove to be of assistance to the Tribunal in determining the issue of disability.  But that was not this case.  The Respondent was disputing the truthfulness of this Claimant’s account.  Against that background, a fair and proper reading of this judgment shows that the Claimant lost his case essentially because his evidence was not accepted.  Whilst there is no specific paragraph in which the Employment Judge says in terms that the Claimant’s account of the nature and effects of his injury is not accepted, it is beyond doubt, in my judgment, that that is what this Tribunal found.

 

41.         The nature of the criticisms being made in this case, albeit attractively presented by Ms Kochnari, suggest to me an inappropriate and over-analytical approach to this judgment, of the kind deprecated by the EAT in Chief Constable of Thames Valley Police v Kellaway [2000] IRLR 170.  No misdirection of law is identified and nor is there any perversity challenge. Whilst a general criticism as to the failure to refer to the Guidance is advanced, no particular provision has been relied upon as showing that, if proper regard had been paid to it, it would have made a difference in this case.  No doubt the reason for that is because this case turned essentially on a dispute of fact and on the credibility of the Claimant’s account, to which the Guidance will be likely to be of less, if any, assistance.

 

42.         Of fundamental importance in this case, in determining whether this Claimant had a disability, was the dispute of fact concerning what the Claimant had told Dr Kahtan he was able to do in January 2009.  Clearly, having heard both of them give evidence, the Judge did not accept the Claimant’s evidence as to the extent of the deficit he was claiming had resulted from his whiplash injury.  Having concluded that he preferred Dr Kahtan’s account of what the Claimant had actually and honestly told her, the Claimant, on his own account, was essentially functioning normally by January 2009.  The brevity of the analysis in the final section of this judgment reflects the fact, in my view, that once this significant dispute of fact had been resolved, the Employment Judge considered that determination of the question whether the Claimant had a disability was clear and flowed inevitably from his findings of fact.  In my judgment it is entirely clear to the Claimant why he lost his case and the reasoning is sufficiently clear in these circumstances.

 

43.         Ms Kochnari’s second ground of appeal is that, in considering whether the Claimant had a disability, the Tribunal incorrectly applied the law by focusing on the activities which the Claimant could carry out, rather than those he could not carry out at all, or could only carry out with difficulty.  She draws my attention in this respect to Goodwin where the EAT observed:

 

“In order to constitute an adverse effect it is not the doing of acts which is the focus of attention but rather the ability to do or not do the acts.” 

 

44.         She relies, in addition, on the decision of the EAT in Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19, where Nelson J stated as follows:

 

“Whilst it is essential that a Tribunal considers matters in the round and makes an overall assessment of whether the adverse effect of an impairment on an activity or a capacity is substantial, it has to bear in mind that it must concentrate on what the Applicant cannot do or can only do with difficulty rather than on the things that they can do. This focus of the Act avoids the danger of a Tribunal concluding that as there are still many things that an applicant can do the adverse effect cannot be substantial.”

 

45.         Ms Kochnari’s complaint is that, whilst reference is made in paragraph 10 of the judgment to the activities that the Claimant was able to undertake, there is no reference to those activities which the Claimant had said in evidence he could not do, such as lifting his young daughter, climbing the stairs without using the banister, or only being able to drive for 15 to 20 minutes without discomfort.  The Tribunal does not expressly state that this evidence is not accepted and the danger alluded to by Nelson J, she submits, was therefore realised in this case.  The Tribunal therefore erred in law in concluding that, because of the tasks the Claimant could do, the adverse effects of his impairment were not substantial.

 

46.         Ms Kochnari is correct in submitting that, under the DDA, the Tribunal must focus upon what a Claimant cannot do.  I accept therefore that, as a matter of principle, it will be impermissible for a Tribunal to seek to weigh what a Claimant can do against what s/he cannot do, and then determine whether s/he has a disability by weighing those matters in the balance.

 

47.         However, I am not persuaded that this Tribunal fell into error in approaching the matter in that way.  Each case will, of course, depend on its own particular facts, and there will sometimes be cases where there is a factual dispute as to what a Claimant is asserting that he cannot do.  In such circumstances I agree with Mr Dyal that findings of fact as to what a Claimant actually can do may throw significant light on the disputed question of what he cannot do.  This, in my view, was such a case.

 

48.         It should be borne in mind that in the case of Leonard there was no such factual dispute.  The Tribunal accepted the Claimant’s account in that case and their error was found to be in their application of the law to what were essentially undisputed facts.  A similar situation arose in Goodwin, where again there was no factual dispute as to what the Claimant could or could not do.  The error identified by the EAT in that case was the Tribunal’s adoption of a balancing approach, held to be impermissible under the DDA.

 

49.         In my view no such error was made by the Tribunal in the present case, where the Tribunal resolved the dispute of fact by accepting Dr Kahtan’s account of what the Claimant honestly said he could do and disbelieving the Claimant’s evidence as to what he said he could not do.  There was no error of law in this approach.  In this respect there is some assistance to be derived from the decision of the Court of Session in Law Hospital NHS Trust v Rush [2001] IRLR 611, (see in particular paragraph 17), where the essential point being made is that, if a Claimant asserts that she cannot do a particular activity at home but has in fact been seen doing it at work, that will clearly be relevant to an assessment of the Claimant’s credibility and therefore to resolving the question of disability.

 

50.         In her third ground of appeal Ms Kochnari submits that the Tribunal misdirected itself by over-relying upon, and accepting, Dr Kahtan’s conclusions instead of coming to its own conclusions on the totality of the evidence and on a proper analysis of all that evidence, in particular all the medical evidence which had been adduced.  In addition she criticises Dr Kahtan for straying into what was properly the Tribunal’s territory.  She draws attention to paragraph 2.41 of the Judgment, where the Judge had referred to Dr Kahtan expressing her opinion that there was nothing in Mr Chugtai’s report to suggest that the Claimant suffered a disability for the purposes of the DDA.

 

51.         The context for Dr Kahtan expressing that opinion was that she was being asked specifically to comment upon the orthopaedic surgeon’s report, though I am told that she had also expressed an opinion in her witness statement that the Claimant was not suffering from a disability. 

 

52.         Unfortunately, medical experts do sometimes stray across the clear boundary that exists between legitimate medical opinion and that which is solely judicial territory.  The important point is to see whether the decision-making body has improperly deferred to medical opinion and has not exercised the vital judicial function of analysing the evidence, applying the correct legal principles and arriving at a properly reasoned decision.

 

53.         Ms Kochnari refers to the case of Abadeh v British Telecommunications plc [2001] IRLR 23, in submitting that this Tribunal erred in allowing Dr Kahtan’s evidence to usurp its own function in determining whether this Claimant was disabled.  On analysis, however, Abadeh does not, in my view, provide the helpful analogy which Ms Kochnari suggests that it does. 

 

54.         The objectionable passage in the Tribunal’s decision in that case, as appears from paragraph 12 of the judgment, was worded as follows:

 

“We saw no reason not to accept Dr Macaulay’s evidence which seems to us to give not only an expert, but a thoroughly sensible, assessment of the evidence.  Where her evidence conflicts with that of Mr and Mrs Abadeh, we prefer her evidence.” 

 

55.         The errors of approach were then identified in the following paragraph:

 

“Although the words ‘seem to us’ suggest that the Tribunal were giving their own consideration to the matter, their reference to Dr Macaulay’s ‘assessment of the evidence’ suggests that they were again relying upon her conclusions on the evidence rather than coming to their own.  The words ‘no reason not to accept Dr Macaulay’s evidence’ is, the appellant submits, looking at the matter the wrong way round, and again suggests undue reliance upon Dr Macaulay’s evidence and her assessment of the evidence.” 

 

56.         It is clear a little further on that the Tribunal had also accepted the medical expert’s analysis that a particular impairment did not have a substantial adverse effect (see paragraph 16).  The EAT’s conclusion at paragraph 21 was as follows:

 

“We are satisfied that the Employment Tribunal did misdirect itself in its treatment of the medical evidence.  It is our clear view that the Tribunal were over-influenced by Dr Macaulay’s opinion as to whether or not the impairments were substantial under the Act and in effect adopted her assessment instead of making their own on that issue.” 

 

57.         In the present case it is clear from paragraph 9 of the judgment that the Tribunal was not making an impermissible error of this kind.  On the contrary, the Employment Judge was accepting Dr Kahtan’s evidence as set out in three, separate and contemporaneous documents, none of which made any reference to the DDA or to any of the legal tests which fall to be addressed under it.  In my view this Employment Judge clearly and properly made up his own mind on all the evidence before him.  The fact that Dr Kahtan worked for Medicals Direct seems to me to be irrelevant, given that her evidence was accepted as credible and reliable.  Further, whilst it is correct that there was other medical evidence before the Tribunal, an important factor in considering that evidence and the various medical reports referred to, is that the other doctors were basing their record of the history of symptoms and their effects on the Claimant’s activities, only on the account which had been given to them by the Claimant.  It is hardly surprising, therefore, that in this case, given the Tribunal’s rejection of this Claimant’s account, the Judge did not consider it necessary to go on to analyse the other medical evidence in the case in the way in which it might otherwise have been necessary for him to do so.

 

58.         I consider that he did have regard to the evidence that he had heard.  Whilst the Claimant’s evidence was that he was unable to undertake normal day-to-day activities, such as lifting his three-year-old daughter or climbing stairs without pulling himself up on the banister, the Employment Judge clearly did not accept that evidence.  A sufficient explanation for that is to be found in the Judgment, where he accepted Dr Kahtan’s evidence as to the extent of the Claimant’s injury, which was inconsistent with the Claimant’s account; found that the Claimant was capable of, and had performed, other strenuous activities such as playing football, gym exercise, weight training, shuttle runs and step-ups; and further found both that he was fit to do his job as early as 12 January 2009, and that the injury he had sustained was a mild soft tissue injury.

 

59.         In these circumstances the Tribunal was, in my view, entitled to come to the conclusion that the Claimant did not have a physical impairment that had a long-term, substantial adverse effect on his ability to carry out day-to-day activities.  The fact that no specific reference was made to the activities that he claimed he was unable to do, does not mean that the Tribunal did not have the Claimant’s evidence in mind when it made the findings of fact that it did.  Indeed, the Judge expressly stated that he had had careful regard to this Claimant’s evidence.  For these reasons I am not persuaded that there is merit in this ground of challenge to his decision.

 

60.         I can deal with Ms Kochnari’s final, two grounds of appeal more shortly in these circumstances.  She submits, firstly, that the Tribunal erred in not considering and applying the correct test as to whether the Claimant’s claimed disability had a substantial adverse impact, as identified by the EAT in Paterson v The Metropolitan Police Commissioner [2007] ICR 1522.  She refers in particular to the passage at paragraph 68 of the judgment in that case, where the EAT said this:

 

“In our judgment the only proper basis, as the Guidance makes clear, is to compare the effect on the individual of the disability, and this involves considering how he in fact carries out the activity compared with how he would do if not suffering the impairment.  If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial.”

 

61.         Her complaint is that there was no such evaluative approach undertaken by this Tribunal and no reasoning which would enable someone to understand how the decision was arrived at.  In this, she submits, the Tribunal was in error.

 

62.         During the course of oral argument it became apparent that some uncertainty apparently exists as to what exactly this passage and the earlier passage at paragraph 27 were meant to convey.  No doubt this is due, in part, to the complex factual background in that case and the way that the issue arose for consideration, given the arguments which were being advanced.

 

63.         I consider that it is unnecessary, and probably unwise, in this case to embark upon an attempted clarification of the test identified in Paterson.  To start with, despite the extensive written submissions presented below on the Claimant’s behalf, no reference was made to this case or to the approach that it is said to establish.  It is difficult, therefore, to criticise this Employment Judge for failing to refer to it. 

 

64.         More importantly, however, the test sought to be relied upon by the Claimant here seems to me to be wholly irrelevant on the facts of this case.  For the reasons I have set out earlier in this judgment, this Claimant’s account of his functional deficit was disbelieved, the Tribunal finding effectively that he had no significant ongoing functional deficit as at January 2009.  For those reasons I consider that there is no merit in this ground of appeal.

 

65.         Finally, Ms Kochnari submits that the Tribunal failed to consider the correct legal test as to whether an activity can be considered a day-to-day activity within the provisions of the DDA.  She refers in this respect to paragraph 12 of the judgment and to the finding that:

 

“Professional bus driving is not a day-to-day activity.”

 

66.         This was a finding which she submits was made without reference to legal authority and was in error, having regard to the decision of the ECJ in Chacon Navas v Eurest Colectividades SA [2007] All ER EC 59, and to Constable of Dumfries & Galloway Constabulary v Adams [2009] IRLR 612.  These cases, she submits, establish that day-to-day activities must encompass those activities in professional life, and professional driving could therefore fall into the category of day-to-day activity.

 

67.         Putting to one side the fact that this also appears to be a point which was not taken below, it seems to me that it cannot be said that the Tribunal was in error in failing to have regard to these authorities.  As Mr Dyal points out, this ground of appeal is premised upon the Tribunal finding, as a matter of fact, that this Claimant could not perform his job on a long-term basis within the meaning of the DDA.  Since the Tribunal rejected the Claimant’s evidence and accepted Dr Kahtan’s evidence that the Claimant should return to work immediately because there were no medical contradictions, reliance on these authorities seems to me to be misplaced.  It is entirely irrelevant in these circumstances whether professional bus driving, and in this case that meant performance of a nine-hour bus driving shift, is a day-to-day activity.

 

68.         In any event, the case of Bourne v ECT Bus CIC UKEAT/0288/08, BAILII: [2009] UKEAT 0288_08_3103 , decided in the light of Chacon Navas, would appear to defeat the Claimant’s argument on this ground.  The EAT held, at paragraph 32, that:

 

“Even if [the Claimant in that case] could not fully carry out her job of driving a bus for an eight-hour shift that is not a normal day-to-day activity under the principles of the Chacon Navas case or the Paterson case.” 

 

69.         For these reasons, the grounds of appeal advanced in this case all fail and this appeal must therefore be dismissed.