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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> College of Ripon & York St John v. Hobbs [2001] UKEAT 585_00_1411 (14 November 2001) URL: https://www.bailii.org/uk/cases/UKEAT/2001/585_00_1411.html Cite as: [2001] UKEAT 585__1411, [2001] UKEAT 585_00_1411, [2002] IRLR 185 |
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At the Tribunal | |
On 8 October 2001 | |
Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MR I EZEKIEL
MR D A C LAMBERT
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MISS KATIE NOWELL (of Counsel) Instructed By: Messrs Horwich Farrelly Solicitors National House 36 St Ann Street Manchester M60 8HF |
For the Respondent | MR JAMES LADDIE (of Counsel) Instructed By: Messrs Michael Scott & Co Solicitors 27 Britannia Street London WC1X 9JP |
MR JUSTICE LINDSAY (PRESIDENT):
"(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."
"I am not competent to provide an opinion as to whether she has a significant psychological disability and it might be appropriate to seek an opinion from a consultant psychiatrist."
"The unanimous decision of the Tribunal is that the Applicant is disabled within the meaning of the Disability Discrimination Act 1995. The matter shall proceed to a hearing on the merits on a date to be fixed."
"We have to decide today whether the Applicant has a physical impairment."
That, properly speaking, was not the question for the Tribunal or, at any rate, not the only question. Miss Nowell agrees that it was not the right question. The right question was whether, at the material time, Dr Hobbs had a physical or mental impairment within the meaning of section 1 (1) of the Act. However, it is quite plain that it was upon physical impairment that the evidence and argument below concentrated.
Before we go into that in more detail, we need first to deal with three peripheral matters.
"The Respondent is not saying that and there is no clear evidence to that effect."
No question of any remission on the subject of mental impairment would thus ordinarily be open to Dr Hobbs.
"The Respondent does not suggest that the Applicant is malingering or lying about the symptoms which she has described to us in evidence."
Later the Tribunal expressly recorded that they were satisfied that Dr Hobbs was telling the truth in describing her symptoms and their effect.
"Otherwise healthy people experience muscle twitching but not to the extent described by the Applicant. That suggests to us that this symptom or manifestation is a product of a physical impairment."
As to her ability to walk, she gave evidence of the high level of activity which she had earlier been able to achieve. Of the time the case was before it, the Tribunal said:-
".... She needs a stick in order to support herself whilst walking. She limits walking to a range of 500 metres because that is the distance she can go before her discomfort increases substantially. She needs to stop for a few minutes when walking, either because of cramp in her right leg or cramp in her right hand resulting from gripping the walking stick. The cramp in her right leg can increase to the point when she can barely manage to walk at all. These, again, appear to us to be physical manifestations, although in other parts of her statement the Applicant uses language which might be seen as more consistent with a psychological manifestation."
When going down stairs, held the Tribunal, she did need one hand to hold the handrail and the other hand to steady herself with the stick.
"In simple terms, we think it means that there is something wrong with the body as opposed to the mind."
That observation, in March 2000, chimes well with the observations made in Rugamer supra in July 2001 where, at its paragraph 34, the EAT says:-
"Impairment for this purpose and in this context has in our judgment to mean some damage, defect, disorder or disease compared with a person having a full set of physical and mental equipment in normal condition. The phrase "physical or mental impairment" refers to a person having (in everyday language) something wrong with them physically, or something wrong with them mentally."
"I can find no evidence to indicate the presence of a disease affecting the central or peripheral nervous system to account for Dr Hobbs's described disability. I am re-assured by the normality of the investigations which she has undergone including MRI scanning and neurophysiology.
I have considered the possible diagnosis of a "post-virial fatigue syndrome" but the features which Dr Hobbs describes are not truly consistent with this diagnosis, nor are they indicative of the syndrome of fibromyalgia which is sometimes diagnosed by rheumatologists.
I am compelled to the belief that there is no organic disease process causing the symptoms described by Dr Hobbs and that her disability is not therefore organic. I am not competent to provide an opinion as to whether she has a significant psychological disability and it might be appropriate to seek an opinion from a consultant psychiatrist."
"... There are plainly manifestations of mechanical problems to do with the Applicant's muscle function in what she describes. We think that the dysfunction described by her is sufficient to bring her case within the expression of "physical impairment" and that it is not necessary for us to know precisely what underlying disease or trauma has caused the physical impairment."
A little later the Tribunal concluded that Dr Hobbs was suffering from a physical impairment which had a substantial and long-term effect adverse effect on her ability to carry out normal day-to-day activities. Given manifestations which were describable as physical and given the absence of expert evidence that Dr Hobbs's condition or symptoms were either not "physical" or amounted to mental impairment or that what was wrong with her was something mental, the Tribunal was, in our view, entitled, if only by inference, to conclude as it did on the evidence it had received. Its conclusion was a permissible option.