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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Liggins v. Thameslink Rail Ltd [2002] UKEAT 1340_00_0312 (3 December 2002) URL: https://www.bailii.org/uk/cases/UKEAT/2002/1340_00_0312.html Cite as: [2002] UKEAT 1340__312, [2002] UKEAT 1340_00_0312 |
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At the Tribunal | |
On 11 July 2001 | |
Before
HIS HONOUR JUDGE J BURKE QC
MR I EZEKIEL
MR S M SPRINGER MBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | Mr Declan O'Dempsey (of Counsel) Instructed By: Russell Jones & Walker Swinton House 324 Grays Inn Road London WC1X 8DH |
For the Respondent | Mr Sam Neaman (of Counsel) Instructed By: Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TN |
JUDGE J BURKE QC
The Appeal
The Facts
"It is Mr Liggins' firm belief that the reason why the offer of employment was withdrawn was the continuing threat of long-term sickness linked to his disability."
It was clear that Mr Liggins put his complaint on the basis that Thameslink had discriminated against him, as a disabled person, by refusing to offer or deliberately not offering him employment and thereby treating him less favourably for a reason which related to his disability – which treated, if not justified, would be unlawful by virtue of sections 4(1)(c) and 5(1) of the Disability Discrimination Act 1995.
The Definition of Disability
"(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."
Section 1(2) provides that "disabled person" means a person who has a disability.
"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."
And, by paragraph 4(1):-
"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;
(b) manual dexterity;
(c) physical co-ordination;
(d) continence;
(e) ability to lift, carry or otherwise move everyday objects. … "
"2(1) The provisions of this part of Part and Parts II and III apply in relation to a person who has a disability as they apply in relation to a person who has that disability.
(2) Those provisions are subject to the modifications made by Schedule 2."
Paragraph 2 of Schedule 2 provides that references in Parts II and III of the Act, which relate to disability discrimination in employment, to a disabled person are to be read as references to a person who has had a disability.
Past Disability
"(1) The Applicant is a disabled person …
(2) The proper question for the Tribunal is whether the Applicant suffers from an impairment …
(10) He still has a more than minor or trivial adverse effect on his ability carry out (sic) normal day-to-day activities.
(11) Here there are adverse effects on
(a) mobility
(b) ability to lift, carry or otherwise move everyday objects."
Although the past history of Mr Liggins' symptoms was well known, these submissions do not suggest that Mr Liggins' case was being put forward, alternatively to present disability at the time of the discrimination which had lasted or would last for twelve months, on the basis of past disability.
"It is submitted that the applicant was a disabled person at the relevant time, and has continued to be a disabled person. In the alternative, even if he had ceased to suffer a substantial adverse effect from any or all of the impairments at any stage he satisfied the criteria for disability within the DDA."
"1. The first, and obvious, point to make is that, when faced with a disability issue, the tribunal should look carefully at what the parties have said in the originating application and response (the IT1 and the IT3). The parties may not have identified the real questions at issue, and, generally, it will be unsatisfactory for the disability issue to remain unclear and unspecific until the hearing itself."
And, at page 307 B to D:-
"The role of the industrial tribunal contains an inquisitorial element, as rule 9 of the Industrial Tribunals Rules of Procedure 1993 indicates. The interventionist role which they have in relation to equal value claims, and which is more clearly set out in the rules contained in Schedule 2 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 (S.I. 1993 No.2687), might be thought a good model for disability cases. There is a risk of a genuine 'Catch 22' situation. Some disabled persons may be unable or unwilling to accept that they suffer from any disability; indeed, it may be symptomatic of their condition that they deny it. Without the direct assistance of the tribunal at the hearing, there may be some cases where the claim has been drafted with outside assistance but which the applicant, for some reason related to his disability, is unwilling to support. Whilst we are sure that tribunals would be alert to such cases, some might feel constrained not to intervene perhaps as much as they would wish. We raised this at the hearing of the appeal as we understand that the provisions of the Act are under review."
"However in our judgment it is not the case that an Employment Tribunal considering a dispute between two parties is an inquisitorial body in the same sense as for example a medical or other tribunal dealing with a disablement issue as part of the statutory machinery for determining benefit claims. As noted in Stonham Housing Association v Pottage (EAT 26 October 2000) which was cited to us, the observations of Morison J relied on are shown by their contents to mean no more than that the Tribunal is obliged, as indeed is expressly recorded in rule 9 of the Tribunals Procedure Rules, to conduct the hearing in a fair and balanced manner, intervening and making its own enquiries in the course of the hearing of such persons appearing before it and such witnesses as are called before it as it considers appropriate, so as to ensure due consideration of the issues raised by, or necessarily implicit in, the complaint being made. However the role of the Tribunal is not thereby extended so as to place on it the duty to conduct a free-standing enquiry of its own, or require it to attempt to obtain further evidence beyond that placed in front of it on the issues raised by the parties, or to cause the parties to raise additional issues they have not sought to rely on at all."
"For similar reasons to those last expressed, we also reject the submissions on behalf of the Appellant in the first case that the Tribunal misdirected itself or erred in failing to address the separate issue which was never raised by him that he had suffered discrimination, not as a person who was currently disabled at all at the time of the acts complained of, but as one who had in the past suffered a physical disability, within section 2 of the 1995 Act. It appears to us beyond dispute from the facts and the nature of the complaints made, as summarised above, that his case was put on the basis of a current and continuing physical injury at all material times. A claim under section 2 would have involved a completely different and inconsistent factual basis of claim, which neither he nor his representative at any stage sought to assert. It cannot in our judgment be a ground of criticism of the Tribunal that they did not of their own motion embark on consideration of such a basis which (in the context of it never having been asserted) no reasonable person could have understood as included in the defined issues for the preliminary hearing … . We accept the submissions of Mr Wynter on behalf of the respondents that there is an obvious difference between this and the Tribunal's duty to consider questions necessarily implicit in the nature of the complaints actually made to them, as in Langston v Cranfield University [1998] IRLR 172 which was drawn to our attention. That general principle is not in doubt but it is simply inapplicable on the facts."
"Although we have not seen precisely how the issue for decision at the preliminary hearing was framed, it would seem that the question for the preliminary hearing was and was only whether Dr Hobbs was disabled within the meaning of the 1995 Act. The question, it would seem, was not at that stage broken into whether she had either, on the one hand, a physical or, alternatively, a mental impairment. If that was so then Dr Hobbs could succeed at the preliminary hearing upon proving either a physical or a mental impairment as long as, in either case, the other requirements of s.1(1) of the Act were satisfied. It does not seem to have been a case, unlike some others, in which an applicant, in his or her IT1 or prior to a hearing at the employment tribunal, had already nailed his or her colours to one only of those two possible masts - contrast Rugamer -v- Sony Music Entertainments U.K. Ltd [2001] IRLR 644."
Disability at the time of the alleged discrimination
(a) mobility:- "his mobility will not be curtailed to any degree but his rate of mobility may be marginally lower than averagely anticipated in a man of his age."
(b) ability to lift etc. "Mr Liggins may have difficulty in carrying heavy shopping for any distance. Likewise any activities which involve a lot of bending or lifting may be difficult. Activities such as carrying a heavy coal bucket or putting a heavy roasting pan into the bottom of the oven may be difficult for him for it may exacerbate his neck or back pains. Activities in the garden which involve digging or working in awkward places may also be difficult for him."
He said that with weight loss an improvement was to be anticipated in his condition.
"6.2 It is my opinion that Mr Liggins' symptoms in relation to cervical spondylosis, while intrusive, do not prevent him from undertaking simple activities of daily living and do not limit his mobility, manual dexterity and ability to lift and carry everyday objects.
6.3 In regard to his lower back, it is my opinion that Mr Liggins has evidence of symptoms typical of mechanical low back pain, which is a musculoligamentous disorder and is contributed to greatly by the fact that he is carrying an excessive amount of weight. While he experiences some degree of symptoms in the lower back related to physical activities, much of this limitation is equivalent to that which is expected of someone with his weight and body habitus."
"18 We do not consider Mr Liggins to be disabled. He attended at work regularly from his return from sick leave in August 1998 until his resignation. He declared himself not to be disabled when he applied for the job with Thameslink. He told us that he believed he could do the work on a moving train carrying a revenue officer's equipment. The Thameslink medical officer must have agreed fro he passed him fit to work.
19 It was difficult for us to decide whether Mr Liggins' obesity was or was not something he could control. We therefore took him as he was and even at seventeen to twenty stones he was able to walk to work and perform his work duties satisfactorily. There were limitations on his ability to do some gardening and getting out of bed caused him some difficulty. But none of these, in our judgment, amounts to a substantial adverse effect.
20 Dr Frankel's conclusion that his symptoms did not prevent him from undertaking the simple activities of daily living seems to us to be a correct assessment of the person we saw and heard about. The offer of work to him was withdrawn after Thameslink saw his sickness record which covered not only his neck and back but a variety of other causes. That was, of course, a detriment but the reason for it was not this disability."
(1) The Tribunal concentrated on what Mr Liggins' was able to do rather than what he was not able to do or juxtaposed what he could do against what he could not do when they ought to have concentrated on what he could not do, as required by Goodwin v Patent Office (supra) and Vicary v BT [1999] IRLR 680.
(2) The Tribunal took account of irrelevant factors, namely Mr Liggins' own statement that he was not disabled, his statement of his ability to carry out the work involved in the Thameslink job and the Thameslink Medical Officer's view of his fitness for that job.
(3) The Tribunal failed to make a finding as to whether Mr Liggins' obesity was within his control and "took him as he was".
(4) The Tribunal failed to consider "impairment" in its ordinary meaning as including matters of "body habitus" i.e., in the context of this case, obesity which might cause a sufferer to be more seriously impaired by a spinal condition than someone with the same spinal condition but not also affected by obesity.
(5) The Tribunal substituted Dr Frankel's opinion for a proper evaluation of the evidence as a whole.
(6) The Tribunal failed to look at the question of disability in the round but looked at it only in the individual areas.
(7) The Tribunal failed to make a judgment as to the extent and affect of the obesity.
(8) The Tribunal failed to provide any reasoning for their conclusion that the symptoms did not amount to a substantial adverse effect on Mr Liggins' ability to carry out normal day-to-day activities.
(1) Although Mr Liggins had put his complaints at a higher level, it was the evidence of the two expert medical witnesses on which the Tribunal based their conclusions.
(2) The joint effect of the medical evidence was that there were only the most minor adverse effects upon Mr Liggins' mobility and ability to lift, carry or move everyday objects, the only two functions or capacities, from the list in paragraph 4(1) in Schedule 1 of the Act eventually relied upon.
(3) Insofar as the difference between the symptoms as described by Mr Liggins and those regarded as attributable to physical impairment as set out by the expert witnesses was argued, in closing submissions, to be caused by functional overlay, the Tribunal had no medical evidence to support such a case; and, as in Rugamer, the Tribunal were entitled not to heed it.
(4) Accordingly the Tribunal were entitled to base their decision on the degree of physical symptoms described by the medical witnesses.
(5) If the Tribunal disregarded obesity, they were right to do so. (see the cross-appeal, below); but they had not done so and had taken it into account in paragraph 19 of their decision in considering whether there was a substantial adverse effect on Mr Liggins' ability to carry out normal day-to-day activities.
(6) The Tribunal had considered what Mr Liggins could not do as required by Goodwin; they had taken the adverse effects upon Mr Liggins into account but were entitled, in looking at the matter overall, as they had done, to consider and test the real extent of his impairment by considering what he and others believed he would do.
(7) If the Tribunal had failed to apply the guidance in Goodwin, such failure would not necessarily amount to an error of law.
"It was difficult for us to decide whether Mr Liggins' obesity was or was not something he could control. We therefore took him as he was. … "
the Tribunal clearly decided, because they could not resolve the issue as to whether Mr Liggins was or was not able to control his obesity, to look at his position overall, obese as he was at the material time. They approached the essential issue on the basis that they would not subtract from the overall picture of Mr Liggins' symptoms such proportion of them as could be attributable to obesity; they resolved the issue of substantial and long-term effect on the basis of Mr Liggins' weight as it was at the material time, namely twenty or seventeen stone. We have no doubt that that is what the words "We therefore took him as he was" clearly meant. That they so meant is confirmed by the remaining words of the sentence. Whether they were right or wrong to approach the overall picture in that way, rather than by excluding the effects of obesity, or would have been right or wrong so to approach the case if they had decided that, without unreasonable effort Mr Liggins could have reduced his weight and therefore the degree of his symptoms, we need not say, at least in addressing Mr Liggins' appeal. We conclude that the Tribunal did not make any error unfavourable to Mr Liggins in the approach which they took to the problem of his obesity and the rival submissions to which that problem had given rise. They did not need to make a finding as to whether Mr Liggins could or would not reduce his weight as long as they did not discount any of his symptoms because of his weight; and they did not make any such discount in taking Mr Liggins' "as he was".
(1) The Tribunal should consider not whether the subject can undertake day-to-day activities but whether his ability to undertake them is impaired (page 308 H to page 309 E).
(2) The focus of attention should be on what a person cannot do or can only do with difficulty rather than on the things that a person can do (page 309 E)
(3) The Tribunal should have in mind that the affects of a disability may be cumulative in that more than one of the listing functions may be impaired (page 308 G to H).
(4) What is a day-to-day activity is easily recognisable by Tribunals but is not to be answered by looking at special cases (e.g. ability to play a piano) (page 309 F to G).
(5) Substantial means "more than minor or trivial" (page 310 C-D)
"28 Both Goodwin … and Vicary … emphasise that the determination of whether there is a substantial adverse impact must depend upon what a person cannot do, rather than what he can still do. It is not a question of balancing individual losses of function directly against retained abilities. We would comment that if, as we suggest, the focus should be on whether or not the ability referred to in para. 4(1) of the Schedule has been affected, there is little room for drawing up such a balance sheet to answer the question whether there has been any adverse impact: the question 'Has manual dexterity been affected?' in circumstances where a person manipulates buttons but only with difficulty cannot sensibly be answered by the reposte: 'Well, she can still write a letter without difficulty … '
29 This proposition has been put beyond doubt by Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19). The Employment Appeal Tribunal criticised an employment tribunal for taking an approach that took examples of what the appellant could do – such as being able to eat, drink and catch a ball – and weighed them against what she could not do – such as negotiate a pavement edge safely. Mr Justice Nelson noticed that the Guidance was only illustrative, accepted that a tribunal must look at the matter in the round, considering the evidence as a whole, but added (at paragraph 27):
'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 or activity or 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'."
The appeal was allowed because the Tribunal had considered what the Applicant could do rather than what she could not do and because the treatment of what were obviously normal day-to-day activities, had wrongly been treated as the activities of an exclusive group.
The Cross-Appeal
Leave to Appeal