Appeal No. EAT/1139/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 August 2002

Before
HIS HONOUR JUDGE D SEROTA QC
MS N AMIN
MR B V FITZGERALD MBE

MS L E GIBBS	APPELLANT

INSTITUTE FOR OPTIMUM NUTRITION	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr Andrew Freer
Messrs Pattinson & Brewer
Solicitors
71 Kingsway
London WC2B 6ST	
For the Respondent	Mr Martyn West
Peninsular Business Services Ltd
Riverside
New Bailey Street
Manchester 
M3 5PB	

JUDGE D SEROTA QC

1	This is an appeal by the Applicant, Ms L E Gibbs, against the Decision of the Employment Tribunal at London South chaired by Mr D Booth, which was promulgated on 6 August last year, after a hearing that lasted two days.  The Employment Tribunal dismissed the Applicant’s claim for disability discrimination on the basis that the Applicant was not disabled.  The Employment Tribunal also dismissed the Applicant’s claim that she had been dismissed because of her trade union membership.  

2	The appeal relates to the finding by the Employment Tribunal that the Applicant was not disabled.  There was a preliminary hearing on 7 November of last year, before Mr Commissioner Howell QC who allowed the matter to proceed to a full hearing.  

3	The background to the matter is as follows: in early 1999, the Applicant began unpaid work for the Respondent which is a charity that provides education to the public on good nutrition.  The Applicant is now aged, we assume, 41 or 42.  In 1991, and 1993, she had suffered nervous breakdowns.  In 1996, she suffered from pains in her arms, neck and lower body.  She consulted her doctor who referred her to hydrotherapy.  

4	In October 1998 in connection with proposed litigation against a former employer for alleged injuries incurred through using office equipment, she was referred to Dr Richard Pearson a Consultant Physician.  He reported, as quote by the Employment Tribunal that:

“13………there was tenderness of the upper fibres of both the trapezius muscles, upper limb tension signs were positive on the right side, movements of the neck were all painful but were not limited by pain.  There was diffuse tenderness at various points in the upper limbs and the first web muscles in the left hand.  There was coldness of the fingers of both hands and capillary return was slow.”

Dr Pearson concluded that the Applicant was:
“ undoubtedly suffering genuine pain and disability over her severe complaints and disability however her severe complaints are not accompanied by any objective evidence or visual disease.  Certain descriptors including prescribed disease A4 (cramp of the hands) have been applied to such diffuse complaints but I emphasise that those descriptors are no more than that and do not constitute a physical diagnosis in the ordinary medical understanding of the disease.  On the basis of the above, I do not find any evidence of physical disorder for example Tenosynovitis which can be related to any occupation.”

He recommended that she should receive further treatment and her condition would be substantially improved, for example, in a multi-disciplinary cognitive behavioural program available within the NHS.  The Applicant, however, did not take up this recommendation of further treatment, nor did she take up the acupuncture recommended by her General Practitioner.  The Applicant described her condition as repetitive strain injury but Dr Pearson did not use that term.  

5	In March 1999 the Applicant was pronounced fit to work.  She had been working, unpaid, for the Respondent which had been pleased with her work. She had become involved in the reorganisation of the library, and she sought a paid post from them.  On 10 May 1999, after negotiations, she began to work three days a week, pro rata £11,000 per year, assisting the manager Mrs Yari D’Avella.  Most of her work would relate to library maintenance and organisation, but some of it would entail typing.  

6	On 1 July of last year, she began full-time work but this was inconvenient and she returned, shortly thereafter, to working part-time.  Relations between herself and Mrs D’Avella do not seem to have proceeded altogether smoothly, and in November there was an argument apparently between them relating to a voice recognition system that was being used by the Applicant for typing and some disquiet had been apparently raised by a voice recognition trainer as to how the Applicant was doing, and how the Applicant wanted to use the system without keystrokes which slowed it down, but was not willing to use footpedals.  In any event, the evidence suggests there to have been some argument which led to the Applicant raising her voice to Mrs D’Avella and she was in fact, therefore, charged with two disciplinary offences and a disciplinary hearing was fixed for 25 February, but as the Employment Tribunal noted, this was overtaken by events.  

7	The Applicant, it should be said, made complaints against Mrs D’Avella.  The Respondent, which as we have said, is a charity, found itself in serious financial difficulties, and on 18 February 2000, its accountants reported to the Managing Director, Dr Sourial, there was a serious finding crisis, and the overdraft which stood at a substantial figure, needed to be reduced by £100,000 unless the Trustees were prepared to guarantee it.  The only alternative was rapid action to reduce costs and staff.  

8	On 22 February 2000, Dr Sourial, without any form of consultation, dismissed the Applicant and three others.  The others, apparently, knowing that they would be likely to be made redundant, agreed to resign.  The Applicant, on the other hand, was dismissed.  The Respondents say the dismissal was for reasons of redundancy.  It is clear that as the Applicant had insufficient service, she could not raise a complaint for unfair dismissal and her only remedies, if she wished to secure compensation in respect of her dismissal, related to dismissal for trade union activity or for discrimination for grounds of discrimination.  We note that a finding was made by the Employment Tribunal that the dismissal was, in fact, for redundancy as opposed to trade union membership.  

9	Were we to come to the conclusion that the Applicant was in fact disabled, it is quite clear to us that the Employment Tribunal did not consider the impact of disability on the dismissal, and were we to come to the conclusion that the Tribunal was wrong in determining 

that the Applicant was not disabled, it would be necessary for this matter to be remitted to the Employment Tribunal.  

10	We now want to say something as to the state of the evidence and findings made by the Employment Tribunal as to the Applicant’s disability.  We have already referred to the substantial portion of the evidence before the Tribunal, when we set out the report of Dr Pearson.  The Tribunal found itself in this difficulty, that although the Applicant was represented by a trade union, she produced no up-to-date medical evidence; it is difficult to define what the Applicant’s disability is.  We accept that there is no need for the Applicant to give a name to her disability, but it does seem in this present case, that the best way of determining what the Applicant’s disability was was by reference to what it was she could, and what it was she could not do.

11	In considering her disability, the Respondent had pointed out to the Tribunal, and the Tribunal had accepted, that the Applicant might reasonably be expected to modify her behaviour to prevent or reduce the effect of the impairment on her normal day-to-day activities.  She had done this to some extent, for example, by the use of appropriate clothing and shopping for smaller quantities of goods.  She had no problems with walking, and as we shall come to later in this judgment, the Employment Tribunal observed her sitting through the hearing without any apparent discomfort.  

12	The essential complaints that the Applicant made related to loss of manual dexterity, but the Tribunal was satisfied that there was no loss of function in the hands, save in a few respects, save in relation to her inability to type, and typing, of course, would not be a day to day activity. What the Tribunal had to say was this, and they recorded her evidence in paragraph 35:

“With regard to her ability to carry out day-to-day activities, Ms Gibbs told us that she had difficulty in holding small objects for any length of time and found it difficult to chop and peel vegetables.  She had difficulty in lifting cooking pans and kettles which were full.  She had difficulty with small buttons and therefore adjusted her wardrobe accordingly.  She had difficulty sitting or standing for any length of time.  She could carry a supermarket basket with a few items but could not carry a full basket.”

We note, and in our opinion, it is probably a matter of some significance, that she had been offered treatment for her symptoms, and had declined that treatment.  That is apparent from the passage which we read earlier.  It is also apparent that the Employment Tribunal was not prepared to accept the Applicant’s evidence at face value, for example, they clearly did not accept her evidence that she was unable to sit or stand for long periods.  

13	The Decision of the Employment Tribunal noted that although the Applicant had been represented by a large trade union, she had not produced any medical evidence specifically directed at the definition of disability in the 1995 Act, and she relied on a report that was nearly three years old, which report had been prepared in connection with a possible claim for personal injuries.  They noted that all the evidence was a reaction to what she complained of, which could not be supported by physical examination.  They were therefore left with the phrase in the report that:
“Ms Gibbs is undoubtedly suffering from pain and disability”
in Dr Pearson’s report, plus her own descriptions to the Tribunal of her pain, and her uncorroborated limitations on her normal day-to-day activities, those were, on balance, sufficient for the Tribunal to find that she had a physical impairment.  They note that there was no case put forward on the basis of mental impairment.  

14	When one analyses what the loss of manual dexterity was, it seems to have come down to inability to chop vegetables and inability to lift full pans or kettles, and possibly (we say possibly, because no finding appears to have been made in this regard) that she was unable to lift a basket at supermarkets, but she had, in any event, developed a coping strategy for that.  

15	So far as the law is concerned, obviously, one needs to start with section 1 of the Disability Discrimination Act 1995 which defines disability as being:

“….. 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.”

This definition is amplified by Schedule 1, and so far as it is relevant to this case, in particular, paragraph (4), which provides that:
“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 -”
and one of the following is:
“(b) manual dexterity”
another is:
“(e) ability to lift, carry or otherwise move everyday objects.”

16	The Act provides that the Secretary of State issued guidance on matters to be taken into account in determining questions relating to the definition of disability in 1996.  We draw attention to certain specific paragraphs, in particular A7:

“A7  Account should be taken of how far a person can reasonably be expected to modify behaviour to prevent or reduce the effects of an impairment on normal day-to-day activities.  If a person can behave in such a way that the impairment ceases to have a substantial effect on his or her ability to carry out normal day-to-day activities the person would no longer meet the definition of disability.
A8  In some cases people have such “coping” strategies which cease to work if certain circumstances ……….If it is possible that a person’s ability to manage the effects of an impairment will break down so that effects will sometimes still occur, this possibility must be taken into account when assessing the effects of the impairment.
A9  If a disabled person is advised by a medical practitioner to behave in a certain way in order to reduce the impact of the disability, that might count as treatment to be disregarded.”

We have already referred to the fact that this is a case in which the Applicant refused treatment.  

17	In paragraph C2:
“C2  The term “normal day-to-day activities” is not intended to include activities which are normal only for a particular person or group of people.  Therefore in deciding whether an activity is a “normal day-to-day activity” account should be taken of how far it is normal for most people and carried out by most people on a daily or frequent and fairly regular basis.
C3   The term “normal day-to-day activities” does not, for example, include work of any particular form, because no particular form of work is “normal” for most people.”
We need not read the rest of paragraph C3, and paragraph C15 deals with manual dexterity:
“C15  This covers the ability to use hands and fingers with precision.  Account should be taken of the extent to which a person can manipulate the fingers on each hand or co-ordinate the use of both hands together to do a task.  This includes the ability to do things like pick up or manipulate small objects, operate a range of equipment manually, or communicate through writing or typing on standard machinery.  Loss of function in the dominant hand would be expected to have a greater effect than equivalent loss in the non-dominant hand.  
It would be reasonable to regard as having a substantial adverse effect -
•	loss of function in one or both hands such that the person cannot use the hand or hands;
•	inability to handle a knife and fork at the same time;
•	ability to press the buttons on keyboards or keypads but only much more slowly than is normal for most people.
It would not be reasonable to regard as having a substantial adverse effect -
•	inability to undertake activities requiring delicate hand movements, such as threading a small needle;
•	inability to reach typing speeds standardised for secretarial work;
•	inability to pick up a single small item, such as a pin.”

18	We were also referred to the Decision of the Employment Appeal Tribunal in the case of Goodwin -v- The Patent Office [1999] IRLR 4.  In paragraphs 34 and 35, some assistance is given in determining the adverse effect of disability.  We quote from paragraph 34 of the Decision of the Employment Tribunal given by Mr Justice Morison.  

“In many ways, this may be the most difficult of the four conditions to judge.  There are a number of general comments to be made.  What the Act is concerned with is an impairment on the 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.  Thus, for example, a person may be able to cook, but only with the greatest difficulty.  In order to constitute an adverse effect, it is not the doing of the act which is the focus of attention but rather the ability to do (or not do) the acts.”

In paragraph 35 he continued:
“…….The focus of attention required by 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.  The Act is looking to see whether the capacities listed in para.4(1) have been affected.  These capacities are those which will be required, to a greater or lesser extent, to carry out normal day-to-day activities, whether at home or at work.”

While we are considering the case, we also draw attention to paragraph 40, in relation to the term which appears in the act as “substantial”.  Mr Justice Morison had this to say:
“On the assumption that the impairment and adverse effect conditions have been fulfilled, the tribunal must consider whether the adverse effect is substantial.  This is a word which is potentially ambiguous.  ‘Substantial’ might mean ‘very large’ or it might mean ‘more than minor or trivial’.  Reference to the Guide shows that the word has been used in the latter sense:  see paragraph A1.”

19	We were also referred by the Applicant to the case of Leonard -v- Southern Derbyshire Chamber of Commerce [2001] IRLR 19, a decision of the Employment Appeal Tribunal, presided over by Mr Justice Nelson.  The Employment Appeal Tribunal made clear that it is wrong to apply the guidance as a form of checklist and follow that slavishly.  The Employment Tribunal had gone wrong in that case because instead of concentrating on what the Appellant could not do, or could only do with difficulty, the Tribunal went through every heading in the guidance C14 - C21, balancing out what the Appellant could and what she could not do.  In the course of this exercise they took into account matters such as the Appellant’s ability to catch a ball, which was not relevant in any way to offset against the degree of disability she suffered, from tripping over a pavement edge.  Nevertheless, it appears from their findings that is what they did, even though it was an inappropriate juxtaposition.  

20	At paragraph 26 they concluded that the Tribunal relied too heavily upon the guidance and failed to focus on the things the Appellant could not do, although she could do them with difficulty, rather than what she could do.  As a consequence, they failed to evaluate her evidence properly, and in 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 on an activity or a 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.”

21	We were referred in addition, by Mr Freer, to the case of Vicary -v- British Telecommunications PLC [1999] IRLR 680, in particular to paragraphs 3, 13 and 15.  This is a case where the Employment Appeal Tribunal had come to the conclusion that on the particular facts of that case, the Employment Tribunal’s Decision that there had been no substantial impairment, could not stand.  So far as the Employment Tribunal were concerned, it had the statute before it, had the guidance before it and, in addition, it had various authorities cited to it, including the case of Goodwin, with its reference to the meaning the term “substantial”.  

22	The first ground of appeal in this case, which is linked with the second, is that the Employment Tribunal erred in law in concluding that the Applicant’s impairments did not have a substantial effect on her ability to carry out day-to-day activities, and also in its consideration of the meaning of the term “substantial”.  It was submitted to us that the Employment Tribunal should have found that the Applicant’s disabilities were substantial in the sense used in Goodwin.  A point was raised in the Skeleton Argument about failure to make a specific reference to the relevant provisions of the guidance, however it was conceded during the course of submissions that this was not necessary, so long as general consideration was given by the Tribunal to the guidance and its effects.  

23	In our opinion, it is clear that the Employment Tribunal both had regard to the details of the code, but also to the specific disabilities and also to the effect of the coping strategies, as referred to in A7 of the guidance.  It was suggested that the Employment Tribunal failed to give any explanation of coping strategies for dealing with heavy pans, we should have thought that coping strategies for dealing with heavy pans are fairly obvious, you either do not fill the pans up, you decant them or you make more than one journey.  

24	It seems to us that the extent of the disability, including the effect of coping strategies is one for the Employment Tribunal to weigh up.  We are quite unable to see any error of law in the approach of the Employment Tribunal and the finding of fact that it made, in relation to the Applicant’s disabilities and the extent to which they impaired her ability to carry out ordinary day-to-day activities, was well within the spectrum of reasonable findings, and cannot be characterised as perverse.  

25	The third ground of appeal is essentially that the Tribunal made incorrect comparisons of what the Applicant was able to, and what she could not do, and played far too great stress on what she could do.  This submission was based upon passages in Goodwin and Leonard, in particular, paragraph 23 of Leonard, to which we have referred.  It was submitted that the Tribunal effectively “took its eye off the ball” and should have essentially considered what she could not do, and what she could only do with difficulty.  Their error, was further, according to the Applicant, compounded by a further mistake, placing emphasis on what she was able to do at work.  

26	It seems to us, however, that the Employment Tribunal had real difficulties in the case caused by the wholly unsatisfactory nature of the evidence as to the Applicant’s disability, placed before them by the Applicant.  We are quite satisfied that they did in fact, correctly, direct themselves and concentrate on issues as to what the disabilities were, and as to what things could only be done with difficulty by the Applicant.  It is true that there are references in, for example, paragraph 36 of the Decision as to what she could do, but it seems to us that this is only set out there in order to explain the extent and the nature of her disability.  

27	The Applicant was essentially claiming loss of manual dexterity, and in order to determine the effect of that loss of manual dexterity, it is clearly necessary to see not only what she cannot do but also what she can do, in order to form a view as to the ambit of the loss of manual dexterity.  This is not a case of comparing wholly different activities under the Act, it is a way of examining and defining, to some extent, the ambit of the loss of manual dexterity.  It seems to us that it is highly relevant for the Tribunal to determine, by reference to what she could and could not do, the extent of the loss of manual dexterity and to weigh these matters up, in order to determine whether the statutory test for disability had been met.  In our opinion, this is what was done in paragraph 36.  

28	The fourth ground of appeal is that the Employment Tribunal placed undue weight on coping strategies and it was submitted that they both misconstrued paragraph A7 and had not identified a coping strategy.  This is a point we have already dealt with; we do not see any error in the application or construction of A7 of the guidance, and it seems to us that the Tribunal was entitled to come to the conclusion that it did, that the impairment did not have a substantial effect upon her day-to-day activities, by reason of coping strategies.  

29	The fifth ground of appeal is that the Decision was perverse.  As was recognised by Mr Freer, perversity is extremely difficult to show, however, as we have already said, we believe that the findings of fact made by the Employment Tribunal and the inferences they drew from those findings of primary fact, were well within the proper spectrum of reasonable decisions, and in those circumstances, it seems to us that the Decision cannot be characterised as perverse, neither do we see the case of Vicary as being an authority for the proposition that loss of dexterity in the sense of inability to chop vegetables can always be regarded as a substantial impairment.  It is a question of fact in each particular case.

30	In the circumstances, although we are greatly indebted to Mr Freer for his careful and thorough submissions, we do not believe that any error of law has been shown in the Decision of the Employment Tribunal and, accordingly, the appeals stand dismissed.