Appeal No. UKEAT/0197/05/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 August 2005

 
Before
HIS HONOUR JUDGE ANSELL
MR K EDMONDSON JP
DR S R CORBY

 

MRS R GINN	APPELLANT

 

 
TESCO STORES LTD	RESPONDENT

 
Transcript of Proceedings
 
JUDGMENT

 

	APPEARANCES

 

For the Appellant	MS B CRIDDLE
(Of Counsel)
Instructed by:
USDAW
188 Wilmslow Road
Manchester M14 6LJ	
For the Respondent	MISS L NORMAN
(Solicitor)
Messrs DLA Piper Rudnick Gray Cary UK LLP Solicitors
Victoria Square House
Victoria Square
Birmingham B2 4DL

SUMMARY
 
Disability Discrimination
 
Tribunal in error to consider progress of impairment once they had determined it had substantial effect for at least 12 months at date of termination.
 
Tribunal did not properly consider overall effect of two illnesses.

.

 

 

HIS HONOUR JUDGE ANSELL
 
1.                   This is an appeal from a Southampton Employment Tribunal decision, following on 18 January of this year in Reasons delivered on 7 February refused an application to add a further condition, for the purposes of disability and also held that the Appellant was not disabled for the purposes of section 1 of the Disability Act.  Leave the same was given to a preliminary hearing on 9 June presided over by HHJ Reid QC.
 
2.                  The background to this case is that the Appellant has been a check-out operator at Tesco stores since 1995.  Her substantial medical complaints were in relation to vertigo and rhinitis.  The evidence before the Tribunal of a medical nature came from Mr Madden, an Ear, Nose and Throat consultant who admitted that he was not an expert as far as vertigo is concerned.  We are somewhat concerned as to why he was instructed in the first place, although it is right to say also that the third condition which was not allowed through to be dealt with as a potential impairment related to possible a chest condition.  
 
3.                  The Tribunal’s decision in relation first of all to vertigo was contained in paragraphs 9 onwards of their decision was that they were satisfied from the Appellant’s evidence that her condition was “episodic but unpredictable” and it affected her mobility causing her to walk with great difficulty and care.  Mr Madden had described it as “causing an illusion of distorted movement”.  In addition, there was distortion of her vision and her inability to read the printed work clearly.  Also there was an inability to drive because of unpredictable visual distortion and vertigo.  The Tribunal held in paragraph 10 that this brought her within the eyesight provisions of paragraph C19(iii) of the Guidance of matters to be taken into account in determining questions relating to the definition of disability.
4.                  However, they then went on to deal with what they described as the difficulty of prognosis and in particular as to whether or not there was a flaw in the Claimant’s case.  And they said this:
“That whilst there is evidence of adverse affects as indicated above and whilst the condition has continued for more than a year the Tribunal does not know what the prognosis is for the Appellant.”
 
They therefore took the view that she was not able to bring herself within the provisions of the section 1 of the Act.  Section 1(1) provides that:  
 
“1(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.”
 
5.                  The second condition was rhinitis.  They dealt in paragraph 13 with her symptoms that she had described in the statement and we will return to those below.  They found that there were a number of symptoms, eyes and nose running excessively, skin on her face becoming inflamed, her throat irritated to a point which she felt like choking when it gets tight and goes into spasms.  
 
6.                  The Tribunal’s conclusions however were that although her condition was not pleasant, - and whilst it was recurring at a time when she suffered, it was  no worse, than a sneezing fit or a person having a cold and they were therefore not prepared again to find that this condition was an impairment that had a substantial adverse effect.  
 
7.                  They went on then to consider the combined effect of both conditions and they described their task as to ascertain whether put together they amounted to something greater than the sum of the parts and would as such amount to disability.  They went on to find that the two conditions did not inter-react with each other and found that there was not therefore a disability arising from the combination of the two.
 
8.                  There are appeals against all three findings and we deal with them separately.  As far as the vertigo is concerned the complaint is that once the Tribunal had apparently found that the impairment in terms of vertigo had already lasted for a period of 12 months it was unnecessary to the Tribunal to then consider the prognosis as far as that disability was concerned as at the date of this preliminary hearing.
 
9.                  We pause first of all to comment that nowhere in the Tribunal decision did they actually determine what was the date when the discrimination is alleged to have occurred.  In the ET1 it was specified as the end of October 2003, which was the date when she received a disciplinary warning for unacceptable attendance.  It would have been helpful if the Tribunal had certainly recorded that date because of course the effect of an impairment has to be judged at the date of discrimination not at the date of a tribunal hearing.  
 
10.              There was some discussion before us as to whether or not the Tribunal had come to a view that as at the date of discrimination the effect of the vertigo had lasted for twelve months and had had a very substantial adverse effect.  It seems to us that the combination of paragraph 10, to which we have already referred relating to the eyesight problems and coupled with the sentence in paragraph 12, where they speak of the “evidence of adverse effects” and, “whilst the condition has continued for more than a year”, as we read those two passages, we are left in no doubt that the Tribunal had made a finding that as at the date of discrimination there was an impairment, it had a long term effect in that it had lasted for a period of twelve months, and indeed had a substantial effect in relation particularly to the eyesight problems that the Tribunal found came within the provisions of the guidance.
 
11.              We therefore agree with the submissions from the Appellant that in those circumstances it was totally unnecessary and irrelevant for the Tribunal then to comment upon the future effect of the illness as at the date of the hearing.  That was irrelevant to their consideration.  The Respondent suggested that the Tribunal may have had in mind the necessity to consider whether the medication that it was agreed that she had been prescribed for the vertigo had had such an effect on her illness that it could be regarded as cured, as opposed to simply the symptoms being lessened - the so called deduced effect.  But we read paragraph 12 in particular as looking forward rather than back and we cannot read paragraph 12 as an attempt by the Tribunal to introduce the issue of deduced effect, and to consider as at the date of discrimination whether the medication she had taken up to that time could be regarded as curing the impairment or disability.
 
12.              In any event the Appellant’s argue that even in the future the Tribunal’s should not be concerning themselves with matters of prognosis unless it can be to ascertain with a degree of certainty that the Tribunal is satisfied that the effect of that continuing treatment was to create a permanent improvement rather than simply masking or alleviating a disability.  That we see from a decision of Abadeh v British Telecommunications [2001] IRLR 23.
 
13.              We are left in no doubt that the Tribunal were wrong to introduce the issues of prognosis as far as the vertigo was concerned, once they had found that the impairment had lasted for twelve months and once they had found that it had had a substantial and adverse effect.  We are not persuaded that we should send the matter back for re-consideration, on the basis that when they spoke of prognosis they were actually looking back in time rather than forward.  On the issue of vertigo we have no hesitation in substituting a decision that this did amount to disability in the meaning of section 1 of the Act.  
 
14.              As far as rhinitis is concerned the appeal though perhaps not drafted in this way in the Notice of Appeal is really a perversity claim.  It has been masked to a certain extent by a suggestion that the Tribunal had in effect been deflected from a proper analysis by describing it simply as no worse than a sneezing fit or a person having a cold and thereby ignored the substantial body of evidence from the doctor that suggested that it could be at times rather more serious than that particularly when he dealt with symptoms such as the throat becoming inflamed becoming tight and going into spasm.
 
15.              However, the Tribunal prior to that paragraph had in paragraph 13 dealt in our view in considerable detail with the evidence that had been adduced by the Appellant herself.  It referred in particular to their duty to consider the symptoms without medication, so on this part of the illness they had clearly addressed their minds to the proper approach.   They had referred to paragraph 36 of the Appellant’s statement where she set out what the Tribunal described as an excellent description of her symptoms.  They then went into the medical evidence before them and noted that Mr Madden had confirmed that these were symptoms which would be within the bounds of those expected from a person suffering from rhinitis.  They concluded that whilst the effect of the coughing could affect her ability to see and move about which might fall within the context of day to day activities, their task was to determine whether these were substantial effects rather than minor or trivial.
 
16.              It seems to us therefore that on the issue of adverse effect they had very much in mind the evidence that was before them.  We would add that the Chairman’s Notes detail a particular answer from cross examination of Mr Madden where he said that where untreated her rhinitis might affect her eyesight but otherwise it would not be likely to prevent her from doing any of the activities at page 17.  The reference to sneezing fit or a person having a cold had indeed come from part of the medical evidence presented by Mr Madden.  
 
17.              The test of perversity is always a very high hurdle to cross and we cannot see that the Tribunal in this case have made such an error that they have satisfied the fact that test of error.  As indicated above they clearly had in mind the evidence from the Claimant,  they clearly had in mind the medical evidence, referred to it in some detail and in our view came to a conclusion that it was permissible on the evidence.
 
18.              Finally on the issue of the combination of the two illnesses.  The Tribunal set out their task to consider whether put together they amounted to something greater than the parts and would as such amount to a disability.  It went onto say that these were two conditions which are not related and which do not interact with each other.  The complaint of the appeal is it was not necessary for them to decide whether or not the illnesses were either related or interacted with each other.  When one looks at the relevant passage in the guidance, paragraph A(6) it sets out the position thus:
“A person may have more than one impairment any one of which alone would not have a substantial effect.  In such a case account should be taken whether the impairments together had a substantial affect overall on the person’s ability to carry out normal day to day activities.”
 
19.              There is no suggestion that they have to be illnesses which inter-react or have a relationship.  The Respondent invited us to consider the second sentence of A(6) which refers to two impairments which have the same affect on the same part of the body.  We do not read the general paragraph A(6) as requiring that it should necessarily affect the same part of the body but merely that it should have overall a substantial effect on the ability to carry out normal day to day activities.  
 
20.              As it happens in this case there was evidence before the Tribunal that both the rhinitis and the vertigo could have had affect on the same part of the body namely this Appellant’s eyesight.  We also are slightly bemused by the final sentence of paragraph 15 where the Tribunal said this:
 
“In the circumstances whilst in general terms Miss Criddle’s argument may have merit, in this particular case it does not.  It is inappropriate on that basis to find that the Claimant was disabled.”
 
We have some difficulty understanding what precisely that sentence meant.  It may explain why they started off in paragraph 15 with the correct test and somehow got diverted onto the incorrect approach.
 
21.              Whilst they have started off on the correct basis we are not satisfied that overall they have applied the correct approach to assessing the effect of more than one impairment which does indeed require them to add up the component parts and see whether it amounts to more than individual parts taken separately.  For this reason we are going to invite the same Tribunal to re-consider this issue.  We do not think it appropriate that it should be sent to a fresh tribunal.  The original tribunal heard a substantial amount of evidence and they will be faced with the decision which we have come to on the vertigo aspect the case.   They will therefore have to consider then the overall situation.
 
22.              The Appeal is allowed in part to the extent that we substitute the finding of disability as far the vertigo complaint is concerned and we invite the Tribunal to re-consider also the effect of the two illnesses taken together.