United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS A MACEY (of Counsel) Bar Pro Bono Unit
For the Respondent	No appearance or representation by or on behalf of the Respondent


 


SUMMARY

DISABILITY DISCRIMINATION

A claimant suffered from a constellation of symptoms, causing significant difficulty in his day to day life, which could not be attributed to a recognisable pathological or mental cause, but were regarded as functional overlay, accentuated by his being obese (at 21.5 stones). The genuineness of the symptoms and their effects were not challenged. An EJ was held in error in concluding that because no physical or mental cause could be identified, therefore there was no disability within the DDA. He should have had regard to the effect of the impairments, not their cause (though the absence of an obvious cause might have evidential significance in an appropriate case if the genuineness of the symptoms was put in issue); should have considered the Guidance in the Code; and wrongly relied on authority which dated from the time when a recognised mental illness had to be shown before a mental impairment could be regarded as a disability, which has not been the case since 2005.


 


THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

1. This is an appeal against a decision of Employment Judge Hollow sitting in Liskeard, Reasons for which were given later on 7 November 2011. The issue is whether the Judge was entitled to conclude as he did that the Claimant was not disabled.
2. The Judge described the case a complex matter which he had not found at all easy. That was because the Claimant suffered from what the Judge accepted was functional overlay compounded by obesity. The Claimant suffered, genuinely, from asthma, dyslexia, knee problems, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach problems, chemical sensitivity, hearing loss, anxiety and depression, persistent cough, recurrent fungal infections, carpal tunnel syndrome, eye problems and sacro-iliac joint pains. That was only an abbreviated list.
3. The symptoms to which those various conditions gave rise included pains in the head, knee, abdomen, lower back, left shoulder, left arm, left knee, left leg, both feet and in the anal area, loss of control causing his leg to give way, bowel symptoms including constipation and diarrhoea, difficulty in swallowing, shortness of breath, constant fatigue and poor concentration and memory. At an MRI scan it was shown that there was a bulging disc between C6 and C7 level.
4. An occupational physician said that she believed that the Claimant suffered from a chronic permanent condition which affected his daily living. That must be apparent from the list of symptoms which I have set out and which the Judge accepted.
5. Doctor Davies, an occupational health specialist, was invited by the parties to examine the Claimant. He concluded that the Claimant had a wide range of symptoms in which a significant part was played by a functional/behavioural component. There was no evidence of any pathological process to explain the range of symptoms nor any significant structural changes of a physical nature which would lead to significant impairment or disability. The question, therefore, was whether somebody suffering from functional overlay accentuated by obesity could claim to be disabled. Is obesity an impairment within the sense of the statute?
6. As to his obesity, the weight of the Claimant was reported as being 137 kilograms (or in an alternative measurement 21 ½ stones). He has a large frame, but is obese. The view of Doctor Davies was that the additional weight which he carried, equivalent to around 18 x 5lb bags of sand, would cause anyone to become fatigued, breathless and have both generalised non-specific musculo-skeletal pains and difficulty in walking because of leg pain.
7. The Judge came to his conclusion in these two paragraphs:

"11 The Respondent resists the claim of disability on a narrow basis. Mrs Winstone, Counsel for the Respondent, does not challenge Mr Walker's account of his symptoms. She says that the wording of the Act is such that the Claimant must establish a physical or mental impairment. There is no suggestion of any mental illness causing the functional overlay, though in the absence of objective evidence of a physical impairment she invites me to say that if the functional overlay is disregarded the symptoms do not amount to a disability. Not so, says Mr Walker, who invites me to take him as I find him and have overall regard to his condition as a whole.

12 I have given this matter careful consideration. Mr Walker presents as a man who has difficulties in his life but I have to determine this issue having regard to the framework of the Act. The position is that, put shortly, in the absence of any mental condition Dr Davies has been unable to identify any physical or organic cause for Mr Walker's conditions apart, to a degree, from his obesity. I have been referred to a number of authorities including McNicol v Balfour Beatty Rail Maintenance Ltd [2002] EWCA Civ 1074 and the cases of Rugamer v Sony Music Entertainment (UK), McNicol v Balfour Beatty Rail Maintenance Ltd, reported at 2002 ICR 381. These cases are authority for the proposition that, depending on the facts of the instant case, it is open to a tribunal to conclude that an individual is not disabled where there is no physical or organic cause for his symptoms. So it is here, I find that there is no such cause for the claimant's symptoms and that they are exacerbated by a functional overlay."

The appeal

8. In her skeleton argument Ms Macey, who appears under the terms of the Bar Pro Bono Unit scheme and for whose careful skeleton the Claimant has every reason to be grateful, argues that those findings display errors of law. The Respondent does not contest the appeal. The Act (the relevant Act here, given the time of the claim, being the Disability Discrimination Act 1995) defines disability as follows:

"(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 upon his ability to carry out normal day to day activities."

9. The first argument which Ms Macey makes is that there is no statutory definition or description of the word "impairment" which should therefore be given its natural meaning: indeed, it is clearly set out in the Guidance on matters to be taken into account in determining questions relating to the definition of disability to which the Disability Discrimination Act refers, to which Tribunals are obliged to pay regard, that the term should be given its ordinary meaning. She supports that by reference to paragraph 19 of McNicol v Balfour Beatty Rail Maintenance Ltd [2002] EWCA Civ 1074, and to The College of Ripon & York St John v Hobbs [2002] IRLR 185. It is the effect and not the cause of an impairment which she submits is material. The Guidance says at A8:

"It not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded[…] What it is important to consider the effect of an impairment, not its cause."

10. She submits it is not necessary for a Tribunal to categorise an impairment as physical or mental as if they were watertight definitions. They cannot be seen as if in two separate silos. It is not always possible, nor it is necessary, to categorise a condition as either one or the other. It only takes a moment's reflection to realise this must be entirely right: the reaction of two different individuals to exactly the same physical insult may be widely different. Some individuals may be described properly as stoical, others may be described (in an other word derived from the Greek) as hysterical. Reactions to pain and discomfort differ. It might be said that the reaction is mental and therefore that every physical impairment has, to some extent, a mental component.
11. I accept that the mental and the physical overlap. The purpose of the definition of disability is not to confine an impairment to that which can be shown to be given a medical label which is either a recognised physical or mental condition: it is, rather, to describe the nature of the impairment.
12. She argues next that obesity itself is a clinically well recognised medical condition. She submits that to the extent that the Claimant's impairments were caused by functional overlay, they were mental impairments. I have difficulty with that submission, if indeed her first submission that an impairment should be looked at in respect of its effect and not its cause is correct. A mental impairment is an impairment to the mental processes. Functional overlay cannot be described in those terms. Functional overlay may manifest itself as either mental impairment or physical impairment, or both: the manifestation of it may arise from a mental process but one must not confuse its cause with its effect – and it is the effect which is, I take it, the main thrust of Ms Macey's appeal.

Discussion

13. Save insofar as she submits that obesity is a clinically recognised condition which in itself would justify a finding of disability, I accept the submissions made to me by Ms Macey.
14. First, what a Tribunal must concentrate on in considering whether an individual is disabled is whether he has a physical or mental impairment. Plainly in this case the Claimant did. Whether one regards the label as physical or mental, both are satisfied. Chronic fatigue syndrome may mix the two; bowel and stomach problems, and knee problems, are physical; anxiety and depression are mental - and the effect of them is well described in the passage which I set out earlier. In addition it was in evidence before the Tribunal Judge that the Claimant suffered from significant cognitive difficulties. On any view he was substantially impaired, had been for a long time and there could be no other conclusion on the evidence before the Judge.
15. Secondly, the Judge thought it necessary in order to establish a physical or mental impairment it appears that it could be said to be caused by something physical or mental. Thus, in paragraph 11 he noted specifically that there was no suggestion of any mental illness causing the functional overlay. That is the wrong approach. The question is whether the individual has the impairment, and whether the impairment may properly be described as physical or mental. The Act does not require a focus upon the cause of that impairment.
16. This is not to say that the absence of an apparent cause for an impairment is without significance. The significance is, however, not legal but evidential. Where an individual presents as if disabled, but there is no recognised cause of that disability, it is open to a Tribunal to conclude that he does not genuinely suffer from it. That is a judgment made on the whole of the evidence. The effect of it, if made, is that there is no such impairment as the litigant claims. That is very far removed from this case where there was no challenge to the Claimant's account of what he suffered.
17. In paragraph 12 the Judge referred to McNicol and Rugamer. He regarded those cases as authority for the proposition that it was open to him to conclude that an individual was not disabled where there was no physical or organic cause for his symptoms. As I have pointed out in the last paragraph, it is open to take that into account in reaching an evidential conclusion, but the significance of the absence or physical or organic cause must be confined to the evidential sphere and not raised into a legal bar as it was here. McNicol and Rugamer were decided before the Act was changed in 2005. It was changed such that it was no longer required that an impairment said to be mental could be ascribed to a well recognised medical condition. The judge should not have relied on them.
18. Third, though I do not accept that obesity renders a person disabled of itself, it may make it more likely that someone is disabled. Therefore on an evidential basis it may permit a Tribunal more readily to conclude that the individual before them does indeed suffer from an impairment or, for that matter, a condition such as diabetes, if that diabetes is such as to have a substantial effect upon normal day to day activities. It may also be relevant evidentially to ask whether the obesity might affect the length of time for which any impairment was to be suffered. Thus in the case of someone determined to lose weight, in respect of whom it could confidently be predicted that they would reduce their weight to normal levels well within a year, with the consequent result that they no longer suffered from impairments which could confidently be ascribed to the weight itself, this could have the result that there was no disability for those impairments would not last for over 12 months.
19. The Judge recognised the difficulty of the case he had before him, at least factually, but should have paid express regard to the guidance. In addition to the passages I have mentioned the Guidance at paragraph A8 advises that it is not necessary to consider how an impairment is caused even if the cause is a consequence of a condition which is excluded; it gives an example of liver disease as a result of alcohol dependency which would count as an impairment although alcoholism itself is expressly excluded from the scope of the definition of disability in the Act.
20. A further specific example is given of a woman with obesity which gives rise to impairments such as mobility restrictions and breathing difficulties. The observation is made that where she is unable to walk more than 50 yards without having to rest it is that effect that needs to be considered rather than the underlying obesity.
21. In summary, if the Judge had not been misled by the reference to McNichol and Rugamer so as to be distracted from the effect of the condition into thinking it was necessary to establish with reasonable medical certainty the cause of those conditions, he would in this case have been bound to conclude that the Claimant was disabled. He should have applied the Guidance. He did not direct himself in accordance with the law. He came to the wrong conclusion.
22. It follows that this appeal must be allowed and a finding that the Claimant was disabled for the purposes of the Disability Discrimination Act 1995 at the relevant time substituted.
23. Finally, I wish to express the gratitude of the court for the submissions of Ms Macey, who has operated in the best traditions of the Bar Pro Bono Unit.