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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Whyte v First Capital East Ltd [2005] UKEAT 0686_04_2203 (22 March 2005) URL: https://www.bailii.org/uk/cases/UKEAT/2005/0686_04_2203.html Cite as: [2005] UKEAT 686_4_2203, [2005] UKEAT 0686_04_2203 |
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At the Tribunal | |
On 10 February 2005 | |
Before
HIS HONOUR JUDGE MCMULLEN QC
MS V BRANNEY
MR D SMITH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
JUDGMENT
For the Appellant | MISS NICOLA BRAGANZA (of Counsel) Instructed by: Messrs Hereward Foster Solicitors 101 Barking Road Canning Town London E16 4HQ |
For the Respondent | MR IRVINE MACCABE (of Counsel) Instructed by: Messrs Moorhead James Solicitors Kildare House 3 Dorset Rise London EC4Y 8EN |
SUMMARY
Disability Discrimination / Practice and Procedure
By a majority decision, new evidence was admitted on appeal.
ET did not err when it focused on and found at a preliminary hearing on disability no physical impairment pursuant to Directions given at a directions hearing and concluded in any event, there was no evidence of a mental impairment within the meaning of the DDA. Morgan v Staffordshire University [2002] IRLR 190 and McNicol v Balfour Beatty Rail Maintenance Ltd [2002] IRLR 710 CA applied.
The Tribunal did not err when it held as a matter of fact that lesions on the back of the Claimant's head and backside were not a "severe disfigurement". Nor did it err when it found that the effect on the Claimant's mobility and his day-to-day activities was not "substantial" which was a question of fact.
Directions given for unfair dismissal hearing.
HIS HONOUR JUDGE McMULLEN QC
Introduction
The issues
"Was the Applicant at the relevant time a disabled person within section 1 and schedule 1 of the Disability Discrimination Act 1995? The Applicant relies upon a physical impairment known as folliculitis which is a chronic recurring infection of the hair follicles.
To that end, directions were given for the medical examination of the Claimant and for the production of relevant medical records and the reports of experts. The Claimant, too, was required to set out in writing "a witness statement describing his medical condition and the effect which it has on his day-to-day activities". The Tribunal decided that the Claimant was not disabled within the meaning of section 1 of the Disability Discrimination Act 1995.
The facts
"5(i) The Applicant was employed as a bus driver from 1996 until 3 February 2004.
(ii) The Applicant suffered from folliculitis from the late 1990s. He has been off work intermittently until dismissed by the Respondent as a consequence of his attendance record.
(iii) The Applicant had undergone treatment for his condition. At the time of dismissal he was still suffering from folliculitis to his scalp and groin and backside. His condition had been improving since late 2003. The condition made him depressed. He also complained of pains in his neck and shoulder blade and shooting pains in his legs.
(iv) At one time in 2002 the Applicant had received treatment from the dermatology department at the Royal London Hospital. He had not attended the Royal London Hospital since at least September 2003. He had been receiving homeopathic treatment since January 2004 though he had unsuccessful homeopathic treatment in the past."
"There was no medical evidence to suggest that the Claimant had suffered any mental impairment i.e. he was suffering from a clinically well-recognised illness".
The legislation
"8. The Tribunal considered Section 1 Disability Discrimination Act 1995 which provides:
"(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."
The Tribunal also considered Schedule 1 Disability Discrimination Act 1995 and particularly paragraphs 3 and 4 thereof. Paragraph 3(1) provides that:
"An impairment which consists of a severe disfigurement is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities."
Paragraph 4(1) provides:
"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
(c) Physical co-ordination
9. The Tribunal also had regard to the Guidance relating to the definition of disability and particularly to paragraphs A.16 and A.17 thereof. Paragraph A.16 of the Guidance provides:
"where an impairment consists of a severe disfigurement it is to be treated as having a substantial adverse effect on the person's ability to carry out normal day-to-day activities. There is no need to demonstrate such an effort."
Paragraph A.17 provides:
"Examples of disfigurements include scars, birth marks, limb or postural deformation or diseases of the skin. Assessing severity will be mainly a matter of the degree of the disfigurement. However, it may be necessary to take account of where the feature in question is (eg on the back as opposed to the face)".
Severe disfigurement
"3. - (1) An impairment which consists of a severe disfigurement is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities.
(2) Regulations may provide that in prescribed circumstances a severe disfigurement is not to be treated as having that effect.
(3) Regulations under sub-paragraph (2) may, in particular, make provision with respect to deliberately acquired disfigurements."
8 FRESH EVIDENCE AND NEW POINTS OF LAW
"8.1 Where an application is made by a party to an appeal to put in, at the hearing of the appeal, any document which was not before the Employment Tribunal, and which has not been agreed in writing by the other parties, the application and a copy of the documents sought to be admitted should be lodged at the EAT with the Notice of Appeal or the respondent's Answer, as appropriate. The application and copy should be served on the other parties. The same principle applies to any oral evidence not given at the Employment Tribunal which is sought to be adduced on the appeal. The nature and substance of such evidence together with the date when the party first became aware of its existence must be disclosed in a document, where appropriate a witness statement from the relevant witness with signed statement of truth, which must be similarly lodged and served.
8.2 In exercising its discretion to admit any fresh evidence or new document, the EAT will apply the principles set out in Ladd v Marshall [1954] 1WLR 1489, having regard to the overriding objective, ie:
8.2.1 the evidence could not have been obtained with reasonable diligence for use at the Employment Tribunal hearing;
8.2.2 it is relevant and would probably have had an important influence on the hearing;
8.2.3 it is apparently credible.
Accordingly the evidence and representations in support of the application must address these principles.
8.3 A party wishing to resist the application must, within 14 days of its being sent, submit any representations in response to the EAT and other parties."
The Claimant's submissions
The Respondent's case
The legal principles
"16
Conclusion
In my judgment, only two general points are worth making. This appeal highlights the crucial importance (a) of applicants making clear the nature of the impairment on which the claim of discrimination is advanced and (b) of both parties obtaining relevant medical evidence on the issue of impairment. As happened in this case, a directions hearing should be held by the chairman of the tribunal to clarify the issues and to ascertain the nature of the evidence which the parties intend to adduce.
17
The approach of the tribunal should be that the term 'impairment' in this context bears its ordinary and natural meaning. It is clear from Schedule 1 to the 1995 Act that impairment may result from an illness or it may consist of an illness, provided that, in the case of mental impairment, it must be a 'clinically well-recognised illness'. Apart from this there is no statutory description or definition of physical or mental 'impairment'. The Guidance issue under s.3 of the 1995 Act by the Department for Education and Employment on 25 July 1996 states in the introduction section in Part 1 that 'it is not necessary to consider how an impairment was caused' and some examples of physical and mental impairment are given (eg sensory impairments affecting sight or hearing), but no general definition or description of 'impairment' is attempted.
19
It is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment with the stated effects. Such a decision can and should be made without substituting for the statutory language a different word or form of words in an ambitious and unnecessary attempt to describe or to define the concept of 'impairment'. The essential question in each case is whether, on sensible interpretation of the relevant evidence, including the expert medical evidence and reasonable inferences which can be made from all the evidence, the applicant can fairly be described as having a physical or mental impairment. The ordinary meaning of the statutory language and of the Guidance issued by the Secretary of State under 3(1) is sufficiently clear to enable the tribunal to answer the question on the basis of the evidence. The decision of the employment tribunal in this case is consistent with that approach and does not contain any error of law.
26
As to the function of the tribunal, it was submitted that it should adopt an inquisitorial and more proactive role in disability discrimination cases, as they can be complex and involve applicants whose impairment leads them to minimise or to offer inaccurate diagnoses of their conditions and of the effects of their impairment. I do not think that it would be helpful to describe the role the employment tribunal as 'inquisitorial' or as 'proactive'. Its role is to adjudicate on disputes between the parties on issues of fact and law. I agree with the guidance recently given by Lindsay J in Morgan v Staffordshire University [200211RLR 190 in paragraph 20. The onus is on the applicant to prove the impairment on the conventional balance of probabilities. In many cases there will be no issue about impairment. If there is an issue on impairment, evidence will be needed to prove impairment. Some will be difficult borderline cases. It is not, however, the duty of the tribunal to obtain evidence or to ensure that adequate medical evidence is obtained by the parties. That is a matter for the parties and their advisers. Sensible and sensitive use of the tribunal's flexible and informal procedures and its case management powers enable it to do justice on this issue by reminding the parties at the directions hearing of the need in most cases for qualified and informed medical evidence, bearing in mind that an unrepresented person may need some explanation about what is involved and what is required and also bearing in mind the cost of obtaining such evidence, the need to keep costs down and limited resources available to many parties in the employment tribunal. The tribunal may also grant an adjournment where it is appropriate for evidence to be obtained on the issue of impairment.
"(1) Advisers to parties claiming mental impairment must bear in mind that the onus on a claimant under the DDA is on him to prove that impairment on the conventional balance of probabilities.
(2) There is no good ground for expecting the tribunal members (or Employment Appeal Tribunal members) to have anything more than a layman's rudimentary familiarity with psychiatric classification. Things therefore need to be spelled out. What it is that needs to be spelled out depends upon which of the three or four routes we described earlier in our paragraph 9 is attempted. It is unwise for claimants not clearly to identify in good time before the hearing exactly what is the impairment they say is relevant and for respondents to indicate whether impairment is an issue and why it is. It is equally unwise for tribunals not to insist that both sides should do so. Only if that is done can the parties be clear as to what has to be proved or rebutted, in medical terms, at the hearing.
(3) As the WHOICD does not use such terms without qualification and there is no general acceptance of such loose terms, it is not the case that some loose description such as 'anxiety', 'stress' or 'depression' of itself will suffice unless there is credible and informed evidence that in the particular circumstances so loose a description nonetheless identifies a clinically well-recognised illness. In any case where a dispute as to such impairment is likely, the well-advised claimant will thus equip himself, if he can, with a writing from a suitably qualified medical practitioner that indicates the grounds upon which the practitioner has become able to speak as to the claimant's condition and which in terms clearly diagnoses either an illness specified in the WHOICD (saying which) or, alternatively, diagnoses some other clinically well-recognised mental illness or the result thereof, identifying it specifically and (in this alternative case) giving his grounds for asserting that, despite its absence from the WHOICD (if such is the case), it is nonetheless to be accepted as a clinically well-recognised illness or as the result of one.
(4) Where the WHOICD classification is relied on, then, in any case where dispute is likely, the medical deponent should depose to the presence or absence of the symptoms identified in its diagnostic guidelines. When a dispute is likely, a bare statement that does no more than identifying the illness is unlikely to dispel doubt nor focus expert evidence on what will prove to be the area in dispute.
(5) This summary we give is not to be taken to require a full consultant psychiatrist's report in every case. There will be many cases where the illness is sufficiently marked for the claimant's GP by letter to prove it in terms which satisfy the DDA. Whilst the question of what are or are not 'day-to-day activities' within the DDA is not a matter for medical evidence -Vicary v British Telecommunication plc [1999] IRLR 680 EAT, the existence or not of a mental impairment is very much a matter for qualified and informed medical opinion. Whoever deposes, it will be prudent for the specific requirements of the Act to be drawn to the deponent's attention.
(6) If it becomes clear, despite a GP's letter or other initially available indication, that impairment is to be disputed on technical medical grounds then thought will need to be given to further expert evidence, as to which see De Keyser v Wilson [2001] IRLR 324 at p.330.
(7) There will be many cases, particularly if the failure to make adjustments is in issue, where the medical evidence will need to cover not merely a description of the mental illness but when, over what periods and how it can be expected to have manifested itself, either generally or to the employer in the course of the claimant's employment. Thus claimants' advisers, before seeking medical evidence, must consider also whether it will be enough to prove a present impairment and whether, instead or in addition, they will need to prove it at some earlier time or times and to prove how it could, earlier or at present, have been expected to have manifested itself.
(8) The dangers of the tribunal forming a view on 'mental impairment' from the way the claimant gives evidence on the day cannot be overstated. Aside from the risk of undetected, or suspected but non-existent, play-acting by the claimant and that the date of the hearing itself will seldom be a date as at which the presence of the impairment will need to be proved or disproved, tribunal members will need to remind themselves that few mental illnesses are such that their symptoms are obvious all the time and that they have no training or, as is likely, expertise, in the detection of real or simulated psychiatric disorders.
(9) The tribunal are not inquisitorial bodies charged with a duty to see to the procurement of adequate medical evidence -see Rugamer v Sony Music Entertainment UK Ltd [2001] IRLR 644 at paragraph 47. But that is not to say that the tribunal does not have its normal discretion to consider adjournment in an appropriate case, which may be more than usually likely to be found where a claimant is not only in person but (whether to the extent of disability or not) suffers some mental weakness.
Conclusions
Mental impairment
Severe disfigurement
Day-to-day activities
Disposal