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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> McConnachie v. DC Thomson & Co Ltd [2005] UKEAT 0015_05_3008 (30 August 2005) URL: https://www.bailii.org/uk/cases/UKEAT/2005/0015_05_3008.html Cite as: [2005] UKEAT 15_5_3008, [2005] UKEAT 0015_05_3008 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN Q.C.
MR M R SIBBALD
MISS A MARTIN
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
JUDGMENT
For the Appellant | Mr D B Stevenson, Solicitor Of- Messrs Thompsons Solicitors 16-18 Castle Street EDINBURGH EH2 3AT |
For the Respondent |
Mrs N McClelland, Solicitor Of- Messrs Thorntons Solicitors 50 Castle Street DUNDEE DD1 3RU |
Disability
The ET correctly decided that the Claimant was not disabled by incontinence since he was not proved to be incontinent at the date of the dismissal, and anyway did not meet the long-term adverse effect conditions.
HIS HONOUR JUDGE McMULLEN QC:
"there is a clear distinction to be drawn between diarrhoea, which she defined as loose watery unformed stools, and incontinence, where it is not possible to control the anal sphincter in time to visit the toilet. In addition, as Mrs McClelland quite properly submitted on behalf of the respondents, there is a large gap in the claimant's clinical notes from the first mention of diarrhoea on 22 October 2002 to the next time it is noted on 8 January 2004 and, as she said, one would have expected both a reference to diarrhoea and to the question of incontinence if they both existed."
That corresponds to a definition in the OED of "continent", which is used as an adjective, "able to control movements of the bowels and bladder." The judgment represents the views of all three members.
Introduction
The legislation
(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."
Further elaboration is given in Schedule 1 to the Act of the words "long-term effect" so that Schedule 1 paragraph 2 provides as follows:-
"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 person affected."
Further illumination is given by paragraph 4 which, so far as is relevant to our case today, provides as follows:-
"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;
(f) speech, hearing or eyesight;
(g) memory or ability to concentrate, learn or understand; or
(h) perception of the risk of physical danger."
"C9 In deciding whether an effect on the ability to carry out a normal day-to-day activity is a substantial adverse effect, account should be taken of factors such as those mentioned under each heading below. The headings are exhaustive- the person must be affected in one of these respects. The lists of examples are not exhaustive; they are only meant to be illustrative. The assumption is made in each example that there is an adverse effect on the person's ability to carry out normal day-to-day activities. A person only counts as disabled if the substantial effect is adverse."
C17 This covers the ability to control urination and/or defecation. Account should be taken of the frequency and extent of the loss of control and the age of the individual.
Examples
It would be reasonable to regard as having a substantial adverse effect:
- • even if infrequent loss of control of the bowels;
- • loss of control of the bladder while asleep at least once a month;
- • frequent minor faecal incontinence or frequent minor leakage from the bladder.
It would not be reasonable to regard as having a substantial adverse effect;
- • infrequent loss of control of the bladder while asleep;
- • infrequent minor leakage from the bladder."
The facts
"(1) Does the applicant have an impairment which is either mental or physical? Mental impairment includes an impairment which results from or consists of a mental illness provided that the mental illness is "clinically well-recognised". If there is doubt as to whether a mental illness falls within the definition, it would be advisable to ascertain whether the illness is mentioned in the World Health Organisation's International Classification of Diseases.
(2) Does the impairment affect the applicant's ability to carry out normal day-to-day activities in one of the respects set out in Schedule 1, para. 4(1), and does it have an adverse effect? The Act is concerned with a person's ability to carry out activities. The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. The focus of the Act is on the things that the applicant either cannot do or can only do with difficulty, rather than on the things that the person can do.
(3) Is the adverse effect substantial? "Substantial" means "more than minor or trivial" rather than "very large". The tribunal may take into account how the applicant appears to the tribunal to "manage", although it should be slow to regard a person's capabilities in the relatively strange adversarial environment as an entirely reliable guide to the level of ability to perform normal day-to-day activities. The tribunal should examine how an applicant's abilities have actually been affected whilst on medication and then consider the "deduced effects" – the effects which they think there would have been but for the medication – and whether the actual and deduced effects on ability to carry out normal day-to-day activities is clearly more than trivial.
4. Is the adverse effect long-term? These provisions appear to be straightforward."
The Tribunal therefore decided (the Claimant having passed the first condition) that it should consider what must be plainly valued judgments of fact and degree as to whether the impairment had substantial and long-term effects. Although it did not distinguish between those two conditions in terms, it determined the Claimant did not pass either of those conditions.
The Claimant's case
The Respondent's case
The legal principles
Conclusions