Appeal No.	EAT/1340/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 January 2002
	and
	21 June 2002
Judgment delivered on 3 December 2002

Before
HIS HONOUR JUDGE J BURKE QC
MR I EZEKIEL
MR S M SPRINGER MBE

MR J LIGGINS	APPELLANT

THAMESLINK RAIL LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

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

1	Mr Liggins appeals against the dismissal by the Employment Tribunal, sitting at London South and chaired by Mr Booth, of his complaint against Thameslink Rail Ltd (“Thameslink”).  His complaint was presented on the grounds that Thameslink had been guilty of discriminating against him for reasons which related to disability.  The Tribunal first considered, as a preliminary issue, whether Mr Liggins was a disabled person as defined by the Disability Discrimination Act 1995.  They found that he was not a disabled person, providing extended reasons for their decision which were sent to the parties on 14 September 2000.  Because Mr Liggins failed on this preliminary issue, his complaint was dismissed.

2	The appeal has been presented before us on two bases.  The first basis – which is wholly separate from the second basis – is that the Tribunal erred in law in failing to consider not only whether Mr Liggins was disabled at the material time i.e. at the time of the alleged discrimination but also past disability.  The second basis is founded on what are argued on behalf of Mr Liggins to have been errors on the Tribunal’s part in their approach to the issue of disability at the time of the alleged discrimination.  Thameslink cross-appeal against part of the Tribunal’s decision as to present disability.

The Facts

3	At the date of the alleged discrimination, in July 1999, Mr Liggins was 44 years old.  From 1985 he had been employed by British Rail as a Booking Clerk in the Kettering area;  his job involved working in the booking office and parcel room of his station and shutting carriage doors.  The Tribunal found that, towards the end of 1995, he developed pain in his lower back and hip area and had physiotherapy.  His symptoms became worse;  he went off work in September 1997.  In March 1998 he was seen by an Orthopaedic Surgeon, Mr Barrington, who found limitation of neck movements and some limitation of movement of the lumbar spine.  Mr Barrington’s report recorded that Mr Liggins was considerably overweight at 20 stone. X-rays of the lumbar spine showed degenerative changes which were minor and normal for a man of his age who had previously undertaken moderate physical activity.  X-rays of the cervical spine showed degenerative change which, according to Mr Barrington, were no more than moderate.  Mr Barrington advised physiotherapy for the neck and weight loss.  He said that a considerable degree of Mr Liggins’ symptomatology would be reduced if he was successful in losing a significant amount of weight.  We will refer later in this judgment to subsequent medical assessments carried out for the purpose of the Tribunal’s hearing of Mr Liggins’ complaint.  Mr Liggins returned to work in September 1998;  his Originating Application said – and it does not appear to have been in dispute – that he experienced intermittent pain for which he took medication but had had no subsequent significant absence from work for sickness.  

4	On 16 April 1999 Mr Liggins sought employment with Thameslink as a Revenue Protection Inspector i.e. a ticket inspector and collector on trains and at barriers.  Mr Liggins believed that he would be able to do this job satisfactorily and, the Tribunal found, on his job application form stated that he had no disability.  After an interview and a medical examination which passed him as fit for the job, he was, on 5 July 1999, offered the job he sought, subject to references;  but the references obtained revealed a long and unsatisfactory sickness record;  and the Tribunal found that Thameslink saw Mr Liggins as a significant risk of further long-term sickness.  They therefore withdrew their offer on 15 July 1999.  

5	As a result Mr Liggins issued his Originating Application.  The relevant part of his application said:

“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

6	Section 1(1) of the 1995 Act 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.”

Section 1(2) provides that “disabled person” means a person who has a disability.

7	Schedule 1 of the Act provides, by paragraph 2, so far as is relevant:-

“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. … ”

8	Finally for present purposes, we should refer to section 2(1) of the Act which provides:-

“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.

9	The effect of these provisions is that discrimination of the type relied upon by Mr Liggins in this case could be established (subject to justification) if there was less favourable treatment related either to disability which Mr Liggins had at the relevant time or to a disability which he had had but no longer had at the relevant time.  

Past Disability

10	Mr O’Dempsey, on behalf of Mr Liggins, submitted that whatever the Tribunal concluded as to disability at the date of the alleged discrimination, they ought to have considered whether Mr Liggins had in the past been a disabled person.  It is clear from the Decision and was not in dispute before us that the Tribunal had not considered this case on the basis of past disability;  the issue is whether they ought to have done so;  and Mr O’Dempsey founded his argument that they ought to have done so on two bases.  The first was that Mr Liggins’ case had been put before the Tribunal on the alternative basis of past disability;  the second was that the Tribunal were, in any event, bound to consider the case on that basis because it was a matter which went to the jurisdiction of the Tribunal. 

11	Mr Neaman on behalf of Thameslink submitted that past disability had not been raised as a live issue on behalf of Mr Liggins before the Tribunal and that if past disability was not so raised, the Tribunal were not under any obligation to raise it themselves.  

12	Mr Liggins’ Originating Application refers to his history of spinal symptoms from September 1997;  it sets out in brief terms what had happened to his application to Thameslink for employment and then puts forward the thrust of his case in the words which we have quoted in paragraph 5 of this judgment.  While those words could possibly be construed as referring to past and/or present disability, they would not normally be understood as referring to past disability;  and any ambiguity which they contained would, in our judgment, have been eliminated by Mr O’Dempsey’s written opening submissions, dated 2 August 2000, which were provided to the Tribunal at the hearing.  In those written submissions Mr O’Dempsey said, at paragraph 1:-

“(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.

13	Mr Neaman also put in written submissions which did not address any question of past disability.  While the evidence before the Tribunal explored the history of Mr Liggins’ health and symptoms, it did so in the context of his disability at the time of the discrimination.  

14	After the evidence was completed both counsel put in written closing submissions in lieu of oral submissions.  Mr Neaman’s submission did not refer to past disability because, he tells us and we accept, he did not understand past disability to be a relevant issue.  Mr O’Dempsey’s submissions do not suggest any alternative case based on past disability until, in paragraph 35, at the foot of page 10 of an eleven-page document, they say this:-

“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.”

15	It is this paragraph on which Mr O’Dempsey primarily relies as raising the alternative case of past disability before the Tribunal.  

16	In our judgment it is quite clear that that alternative case had not been raised before or during the Tribunal’s hearing of Mr Liggins’ claim.  The opening arguments and the consequent evidence had not been directed to any such issue.  If it was desired to advance a new case after the end of the evidence, it was at least necessary that the new case should be plainly and unambiguously put before the Tribunal and that the other party to the proceedings should have the opportunity to know that it was being put forward and to respond to it.  Both the Tribunal and the other party would have had to consider whether the new case could be adequately considered on the basis of the evidence given and submissions provided and, if not, what steps needed to be taken.  

17	However the one sentence in paragraph 35 of Mr O’Dempsey’s closing submissions, which is the only possible express reference to the alternative case based on past disability, is far from plain and unambiguous;  it does not expressly refer to past disability;  section 2 of the 1995 Act is not mentioned there – or anywhere else.  How Mr Liggins was to be said to have satisfied the criteria for disability under the Act if he was not a disabled person at the relevant time is not explained.  There is no supporting argument or analysis of the evidence to indicate to the Tribunal clearly what was being forward or on what basis an alternative submission was founded.  

18	Mr Neaman plainly did not understand Mr O’Dempsey’s submissions as putting forward an alternative case based on past disability.  Had the Tribunal proceeded on the basis of an alternative case which had not previously been canvassed, as was the situation here, they could only have done so at the risk – and if they had found in favour of Mr Liggins on the alternative case alone the certainty – of serious injustice and a consequent successful challenge on appeal.  

19	For these reasons, unless the Tribunal were constrained by law to consider the alternative case as a matter of jurisdiction, we conclude that the Tribunal did not commit any error of law in failing to consider it.

20	As to jurisdiction, Mr O’Dempsey submitted that whether an Applicant is or was a disabled person or had been a disabled person was a question which went to the jurisdiction of the Tribunal.  An able-bodied person could not complain of discrimination;  once a complaint was made, the Tribunal had to consider whether the Applicant had at the time of the alleged act of discrimination either a current or a past disability, as defined by section 1 and schedule 1 of the Act. 

21	We accept, of course, that the first hurdle which an Applicant faces in a disability discrimination claim is that of establishing that he was a person who had a disability i.e. was “a disabled person” as defined by the Act either at the time of the alleged discrimination or, by virtue of section 2 of the Act, at some previous time.  It does not, however follow that an Applicant who fails so to establish his claim fails for want of jurisdiction;  he fails because the Tribunal, having had jurisdiction under the Act to hear his claim, has found that he has not overcome the first essential hurdle.  It could, of course, properly be said that, in the case of an Applicant who has so failed, the Tribunal has no jurisdiction to continue to consider whether there was discrimination;  whether that would be an accurate description might be thought to be a matter of semantics.  In any event it does not follow from any of the above that the Tribunal are obliged as a matter of jurisdiction to consider various ways in which an Applicant might be able to discharge the burden of establishing that he was a disabled person.  If so establishing constitutes a jurisdictional threshold, it is for an Applicant by evidence to seek to get over that threshold.

22	In Goodwin v Patent Office [1999] ICR 302, a decision to which we will need to return later in this judgment for other purposes, the Employment Appeal Tribunal, chaired by Morison P, said, at page 306 F to G, in giving guidance for future cases:

“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.”

23	We respectfully agree that it is important to look in a case such as this at the Originating Application and the employer’s response and to identify the real question or questions at issue.  In this case that exercise would not have revealed any issue as to past disability.  If there were any doubt, Mr O’Dempsey’s opening submissions would have removed such doubt.  Any issue as to past disability did not emerge, if at all, until the end of Mr O’Dempsey’s closing submissions.  We agree, too, with the need for Tribunals to be alert to the possible importance of offering assistance to Applicants who may not wish or may not how to put their case forward in the correct or most helpful way.  That is not, however, to suggest – and Goodwin plainly does not suggest –that the Tribunal must, as a matter of law, identify a way or an alternative way in which an Applicant’s case might be put but had not been put, particularly if, as in this case, the Applicant is represented by experienced solicitors and/or counsel.  In Rugamer v Sony Music Entertainments UK Ltd & McNicol v The Balfour Beatty Rail Maintenance Ltd [2001] IRLR 644, the case of the two Applicants (whose appeals were heard together) had been put before the Tribunal on the basis of physical impairment and not on the basis of mental impairment.  Having rejected the Applicant’s cases on physical impairment, the Tribunal considered briefly and without full investigation whether the applications could succeed on the basis of mental impairment.  It was submitted that the Tribunal had erred in determining that the cases failed on mental impairment without at least addressing or enquiring into that possibility further.  The Employment Appeal Tribunal, chaired by Mr Commissioner Howell QC, said at paragraph 47:

“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.”

24	At paragraph 49, dealing with the case of one of the two appeals, the EAT said:-

“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.”

25	We respectfully agree with what the Employment Appeal Tribunal set out in both those passages as representing sound law, principle and common sense;  they apply to this case.

26	In College of Ripon & York St John v Hobbs [2002] IRLR 185, the EAT, chaired by Lindsay P, had before it an employer’s appeal against the conclusion of the Tribunal that the employee was suffering from what was described in her Originating Application as “slow progressive muscle weakness and wasting”.  The Originating Application did not specify whether she put her case on the basis of physical or of mental impairment.  At paragraph 10 of its judgment, the Employment Appeal Tribunal said:

“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.”

27	This extract from a subsequent decision of the EAT supports the paragraphs from Rugamer which we have cited.  An applicant may be seen to have nailed his or her colours to the mast of physical or mental impairment or to disability at the time of the alleged discrimination rather than past disability which had ceased by that time.  While in the case of an unrepresented Applicant, the Tribunal may, as part of the discharge of their duty to conduct the hearing fairly, described and amplified in paragraph 47 of Rugamer, wish to take action to ensure due consideration of the issues raised expressly or by implication in the complaint before them, the Tribunal are not under any duty to raise issues which are not expressly relied on and which are not implicit in the complaint.  Mr Liggins was, as we have said, represented by experienced counsel and solicitors;  his case was put, at least until paragraph 35 of Mr O’Dempsey’s closing submissions, on the basis of a disability present at the time of the alleged discrimination.  There was, in our judgment, in the circumstances of this case no obligation upon the Tribunal, whether expressed as a matter of jurisdiction or otherwise, to seek to open up or to approach their decision on the basis of past disability when Mr Liggins’ claim had not been put before them on that basis before or at the hearing.

28	Accordingly this aspect of Mr Liggins’ appeal must fail.

Disability at the time of the alleged discrimination

29	Mr Liggins’ case as to disability at the time of the alleged discrimination was that as a result of his spinal condition, in the context of his obesity, there was a substantial and long-term adverse effect upon his mobility and his ability to lift, carry or otherwise move everyday objects;  see Mr O’Dempsey’s opening submissions, paragraph 1, set out above at paragraph 12 of this judgment.

30	Mr Barrington’s first report is dated 5 March 2000;  at that time he had not seen Mr Liggins since August 1998.  It was in that report that he described the radiological changes as no more than moderate and, with respect to the lumbar spine, almost normal in a man of his years who had previously undertaken moderate activity.  He said that the moderate changes might preclude Mr Liggins from heavy physical work which involved a lot of bending or lifting but he was not precluded from clerical work.  Neither his work for British Rail or its successors nor his projected work for Thameslink involved a lot of bending or lifting.  In a supplemental report dated 19 April 2000 he said, in summary, of the two areas of normal day-to-day activities which were relied upon:-

(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. 

31	Thameslink obtained a report from Dr Frankel, a Consultant Physician at Charing Cross Hospital, who provided a lengthy report after examining Mr Liggins on 5 May 2000.  At paragraphs 2.1 to 2.6, he set out the symptoms reported by Mr Liggins.  He described the cervical spondylosis as causing some degree of neck discomfort and stiffness which might affect sleep pattern but did not appear to have affected his ability to carry out his occupational activities and would not limit him from undertaking a job which required him to maintain a reasonable degree of mobility.  He said that the symptoms in the cervical spine were not a significant factor preventing Mr Liggins from the activities of daily living.  As to the lumbar spine, he found very little by way of positive finding on examination and no significant radiological change.  He said that he agreed with many of Mr Barrington’s comments as to Mr Liggins’ functional capabilities.  He agreed that he might be slower in mobilising than an average man of his height and weight and that he would not be able to undertake activities requiring him to look down or stoop for long periods.  He said that gardening was quite difficult.  He concluded, in his section 6, headed “Summary and Conclusions”:-

“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.”

32	Both Consultants gave evidence;  the Tribunal do not set out their oral evidence in their decision;  and the parties did not, in the absence of notes of evidence, seek to rely on their oral evidence as making any further substantial contribution to the overall picture.  

33	The Tribunal clearly identified that the issue which they had to decide was whether the physical impairment relied upon, i.e. Mr Liggins’ spinal condition, had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities, the functions or capacities on the list in paragraph 4(1) of Schedule 1 to the Act relied upon being mobility and ability to lift, carry or otherwise move everyday objects.  They set out their resolution of this issue in paragraphs 18 to 20 of their decision as follows:

“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.”

34	We have been provided with well over 60 pages of written submissions and counter-submissions for the hearing of this appeal;  that figure does not include four sets of written submissions to the Tribunal which have also been supplied to us.  We make no criticism of this;  but for obvious reasons we cannot set out all of the parties’ submissions even in an abbreviated form in this judgment.  We have carefully considered them all.  We can do no better than to attempt a summary of the principal thrusts of the competing arguments presented to us.

35	Mr O’Dempsey’s criticisms of these paragraphs of the Tribunal’s decision were based on the following arguments:-

(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.

36	Mr Neaman submitted:-

(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.

37	We propose, at the outset of our response to these submissions, to set out three important conclusions.  The first is that the Tribunal did not, in our judgment, disregard Mr Liggins’ obesity as forming part of the overall picture which they had to consider.  Mr O’Dempsey had argued, in his closing submissions to the Tribunal, that Mr Liggins could not be expected substantially to lose weight in the short term or within the relevant 12 month period and, therefore, the fact that his symptoms might decrease in their severity if he achieved weight loss (which was the medical evidence and plain common sense) was irrelevant.  Mr Neaman had submitted that obesity is not an impairment under the Act (although, unlike the effects of e.g. smoking, alcohol, hay fever and various antisocial activities, it is not excluded from being regarded as an impairment by paragraph 8 of the “Guidance on Matters to be taken into account when determining questions relating to the Definition of Disability”).  Mr Neaman submitted that Mr Liggins should not succeed in establishing his case if the adverse effect of his spinal condition only became substantial by reason of his obesity (unless the obesity itself was based on some physical or mental condition – which was not asserted in this case).

38	In our judgment the Tribunal did not accept Mr Neaman’s submission.  In saying, at paragraph 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. … ”

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”. 

39	Our second conclusion is that the Tribunal did not fail to look at the issues which they had to determine in the round.  While paragraphs 18 to 20 are briefly and succinctly expressed, when the Decision is read as a whole the Tribunal can be seen to have considered all the symptoms and limitations described in the medical evidence, which they were entitled to summarise in their concluding paragraphs.  We do not accept that the Tribunal limited themselves to considering what Mr Liggins could do against what he could not do or to individual areas.  In our judgment it was open to the Tribunal to put weight on Dr Frankel’s conclusion that Mr Liggins’ symptoms did not prevent him from undertaking the simple activities of daily living and from reaching their own assessment of Mr Liggins on the basis of what they saw and heard.  The impression that Mr Liggins made on the Tribunal was entirely a matter for them.  Paragraphs 18 to 20 of the Decision, taken as a whole, appear to us to demonstrate that the Tribunal did indeed look at the evidence as a whole and, evaluating it as they were entitled to, reached a conclusion on the whole of the evidence that the symptoms put before them described by the doctors did not have a substantial adverse effect on Mr Liggins’ ability to carry out normal day-to-day activities.

40	Thirdly we do not accept that the Tribunal made the error, if error it would have been, of substituting Dr Frankel’s conclusion for their own evaluation of the evidence.  They describe the results of their own assessment twice, at the beginning of paragraph 18 and at the end of paragraph 19 of that Decision before coming to Dr Frankel’s conclusions.  When they refer to that conclusion, they do so on the basis that it was consistent with Mr Liggins as they saw and heard him.  We need not, therefore, consider whether, if the Tribunal had proceeded on the basis of Dr Frankel’s conclusion alone, that would have been an erroneous approach;  a fair reading of the Decision demonstrates, as we see it, that they did not do so.  

41	These three conclusions lead to the result that we reject Mr O’Dempsey’s submissions 3 to 7.  We turn therefore to Mr O’Dempsey’s first two submissions.  

42	It is important, in our judgment, to bear in mind that it does not follow from the fact that one or more of the eight capacities set out in paragraph 4(1) of Schedule 1 to the Act is or are, adversely effected that there is an impairment which has a substantial adverse effect upon the subject’s ability to carry out normal day-to-day activities.  In order to affect such activities, the impairment must affect one or more of these eight capacities;  if it does, the Tribunal has then to consider, having regard to all of the material evidence, whether the adverse effect upon a particular function or functions is substantial.  The judgment of the EAT in Goodwin, at pages 308 H to 310 F, lays down the following principles which Tribunals should follow in addressing that issue:

(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)

43	The case of Vicary does not, in our judgment, add substantially to the above guidance;  it is a case in which the Tribunal erred in the respects set out in paragraph 17 of the Judgment of the Employment Appeal Tribunal;  at paragraph 5 of that judgment the Employment Appeal Tribunal repeated the principle expressed in Goodwin that the Tribunal should concentrate more on what the Applicant could not do as opposed to what he could do.  It is worth drawing attention to the fact that that paragraph in Vicary does not disqualify the Tribunal from looking, to some extent, at what an Applicant can do as well as what he cannot do.  

44	Mr O’Dempsey relied further on College of Ripon & York St John v Hobbs (see at paragraph 25 above) as providing further guidance, at paragraphs 31 and 32 of the decision of the Employment Appeal Tribunal, to the effect that nothing in the 1995 Act or in the Guidance throws any light upon the meaning of the words “physical impairment”, although there is some broad restriction on “mental impairment” in paragraph 1(1) of Schedule 1 of the Act.  This point went principally to support Mr O’Dempsey’s argument as to the need to include conditions such as obesity, which argument we have already addressed;  but the judgment contains an important reminder to Tribunals of the unrestricted ambit of the relevant words, in a case of physical impairment, as they approach the task of determining whether or not an applicant is disabled.  

45	We were further taken to Ekpe v Commissioner of Police of the Metropolis [2002] IRLR 605, in which, as a result of a wasting condition of the muscles of her right hand, the Applicant was unable to carry heavy shopping, could just cook normally but could not scrub pans normally, could not peel or grate and could not apply makeup with her left hand, sew or put rollers in her hair.  The Tribunal found that there was no substantial adverse effect upon her ability to carry out normal day-to-day activities on the basis that there were many tasks which she could perform, that inability to apply makeup or put rollers in her hair was an inability to carry out activities done exclusively by women and that the application of makeup or putting rollers in hair were not normal day-to-day activities but the activities of a particular group.  The Employment Appeal Tribunal, chaired by Mr Recorder Langstaff QC, reversed the Tribunal’s decision.  It said, at paragraphs 28 and 29:-

“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.

46	With the guidance from these cases firmly in mind, we turn to answer the question whether the Tribunal in this case failed to comply with that guidance and with the principles established in those decisions.  In our judgment they did not.  It is plain that, insofar as Mr Liggins’ evidence depicted a wider or more profound collection of symptoms than that supported by the medical evidence, the Tribunal did not accept it;  they were entitled as they did to assess the position on the basis of medical evidence and on the evidence of Dr Frankel if that differed from the evidence of Mr Barrington, particularly when that evidence was consistent with the impression given to them by Mr Liggins when he gave evidence.  There was no basis for treating any differences between Mr Liggins’ account of his symptoms and that of Dr Frankel or Mr Barrington as attributable to functional overlay;  as in Rugamer there was no medical evidence to support such attribution and no mental impairment was relied upon.  Contrary to Mr O’Dempsey’s suggestion, we see no difference of approach between Rugamer and College of Ripon & York St John.  

47	Accordingly the Tribunal were entitled, as they did, to base their decision upon the medical evidence and the physical symptoms which were, pursuant to that evidence, attributable to Mr Liggins’ spinal condition.  It is manifest from paragraphs 18 and 19 of their Decision that the Tribunal, in assessing those symptoms, took into account evidence as to what Mr Liggins could do;  but none of the authorities suggests that, as a matter of law, a Tribunal may not do so;  and we have already drawn attention to the fact that Vicary expressly indicates that the Tribunal may do so.  A principle which prevented a Tribunal from looking at what an Applicant can do, would be, as we see it, difficult to understand and difficult to put into practice.  There are likely to be many cases in which a Tribunal will need or will regard it as sensible in practical terms to consider what an Applicant can do in order properly to measure, evaluate and appreciate what he cannot do and to discover and make a finding as to the true extent of the Applicant’s impairment and whether it has a substantial and long-term adverse effect on the Applicant’s ability to carry out normal day-to-day activities.  What a Tribunal must avoid, following Goodwin, Vicary and Ekpe, is concentrating or focusing on what an Applicant can do as opposed to what he cannot do or can only do with difficulty or in approaching the issue on the basis of a balance sheet.  In this case the Tribunal, in our judgment, was entitled to consider and give weight to the evidence as to what Mr Liggins could do in order to determine the degree of adverse effect upon his everyday activities derived from his spinal condition;  we see nothing in the Decision to indicate that they went further than that.  

48	Nor, in our judgment, were the Tribunal taking irrelevant factors into account or wrongly putting into the balance what Mr Liggins had said to Thameslink about his disability when he applied for the job, what he said to the Tribunal about his ability to do that job or what the Thameslink Medical Officer thought about his ability to do that job.  The Tribunal nowhere suggest that any of these matters was determinative;  they were relevant to the issue of the extent to which Mr Liggins was, in the round, to be regarded as substantially adversely affected in his ability to carry out his everyday activities.  The job was one which made no strenuous physical demands.  The fact that Mr Liggins and the Thameslink Medical Officer both believed that he had the physical ability to perform the duties which the job required was evidential as to the extent of such adverse effect;  and in any event the thrust of the evidence of the medical experts was to the same effect.  Neither said that Mr Liggins could not do that job;  and their descriptions of what he could and could not do are consistent with his being able to do that job.  Mr Liggins’ statement on the job application form that he was not disabled was perhaps of less direct relevance;  but particularly because the Tribunal felt, as is clear from paragraph 19, that they had to make an assessment of Mr Liggins, no doubt because of the discrepancies between his description of his symptoms and that put forward by the doctors, we do not see that it could be said to have been necessarily irrelevant.

49	Finally we turn to Mr O’Dempsey’s complaint that the last sentence of paragraph 19 was lacking in reasoning and revealed that the Tribunal had not been considering whether Mr Liggins’ symptoms had a substantial adverse effect on any of the capacities listed in paragraph 4(1) of Schedule 1 to the Act but were erroneously looking at Mr Liggins’ condition overall.  It was agreed between Counsel that if there was a substantial adverse effect in relation to one of the listed capacities, that could not be set on one side by looking at all the other capacities in which there was no limitation.  However, we do not read the Decision as revealing the mistakes contended for.  The Tribunal had correctly directed themselves as to Section 1 and Schedule 1 of the Act in paragraphs 13 and 14 of the Decision;  and in paragraph 16 they specifically referred to the specific capacities from the list in paragraph 4(1) of Schedule 1 on which Mr Liggins relied (including the perception of risk of physical danger which was relied upon, in addition to mobility and ability to lift in Mr Liggins’ further and better particulars).  If the Decision is read as a whole, as it should be, it can be seen that in paragraph 19 the Tribunal were responding to the specific submissions put before them on behalf of Mr Liggins and were, by way of such response, finding that there was no a substantial adverse effect upon Mr Liggins’ day-to-day activities in the specific respects which they had been asked to consider.  The basis of that finding is to be seen in the whole of paragraphs 18, 19 and 20.

50	As to absence of any reasoning for the Tribunal’s conclusion as to substantial adverse effect, the essential paragraphs of the Decision are short and to the point;  other Tribunals might have provided more analysis;  but in our judgment those essential paragraphs are sufficient to comply with the requirements in Meek v City of Birmingham District Council [1987] IRLR 250, that there should be sufficient reasons given to inform the parties why they have won or lost.  

51	For the above reasons we conclude that the Tribunal have not been shown to have approached their task in this case erroneously or to have erroneously applied the law.  Other Tribunals might or might not have reached a different view on the facts;  but having correctly identified the issues and having not made any error of law, the decision as to whether the physical impairment had a substantial adverse effect upon Mr Liggins’ day-to-day activities was one of fact for the Tribunal;  and they reached a decision on the facts which was open to them to reach.

52	For those reasons the appeal is dismissed.

The Cross-Appeal

53	We have concluded in relation to the appeal that the Tribunal did take Mr Liggins’ obesity into account and did not discount the effects of obesity in assessing the extent of his impairment.  However, we have concluded that the Tribunal’s decision in favour of Thameslink must stand.  

54	In those circumstances Thameslink do not need to succeed on the cross-appeal which, in practical terms, does not arise for decision.  The questions whether obesity is capable of being an impairment and whether, if symptoms are increased in effect by reason of obesity, they should be discounted by the extent of that increased effect and whether it matters that the obesity is or is not remediable are, in this case, academic in the light of our decision on the appeal.  They are also, at least potentially, controversial.  We regard it as sensible not to embark on the expression of views on a potentially contentious and important issue which would not, in the light of our conclusion on the appeal, be of any relevance to the instant case, at least at the present stage.

55	We therefore make no order in relation to the cross-appeal.  If this case were to go further, Thameslink will of course be able to raise the points which go to their cross-appeal again if they so wish.

Leave to Appeal

56	Finally we were asked to consider granting leave to appeal to the losing party, whatever the result of the appeal or cross-appeal.  However, we do not regard this case as giving rise to any points of principle which are not amply covered by earlier decisions;  in the end this is a relatively simple and uncomplicated case which was decided on its facts.  Accordingly we do not think that it would be right to give leave to appeal.