Appeal No. UKEAT/0967/03/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 March 2004

Before
HIS HONOUR JUDGE MCMULLEN QC
MR P DAWSON OBE
MR D J HODGKINS CB

MR P GRIMLEY	APPELLANT

TURNER & JARVIS CO LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J HARRISON
(Trade Union Representative)
The Knitting Industries' Federation
12 Beaumanor Road
Leicester LE4 5QA
	
For the Respondent	MR A NAWBATT
(of Counsel)
Instructed by:
Messrs Abel-Brown Solicitors
18a Orange Street
Uppingham
Rutland LE15 9SQ	

SUMMARY

Disability Discrimination: meaning of disability

The combination of Section 1 of, and Schedule 1 paragraph 8 to, of the Disability Discrimination Act 1995 means that if the Appellant has a progressive condition, and has an insubstantial impairment for 12 months, and a further substantial impairment, he is not required to prove the latter is likely to last 12 months.

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about the legal definition of disability in the case of a cancer patient.  The judgment represents the views of all three members.  We will refer to the parties as Applicant and Respondent.

Introduction

2.	It is an appeal by the Applicant in those proceedings against a decision on a preliminary issue of an Employment Tribunal sitting at Leicester, Chairman Mr J A Threlfell, registered with Extended Reasons on 15 October 2003.  The Applicant and Respondent were represented respectively, as here, by Mr Akash Nawbatt of Counsel and Mr John Harrison representative of the employer’s federation.

3.	The Applicant claimed unfair dismissal and was permitted to amend his Originating Application to include a claim of disability discrimination.  The Respondent denied that the Applicant was dismissed unfairly contending the reason was redundancy.  We have not seen its response to the additional disability claim.

The Issue

4.	The essential issue, as defined by the Employment Tribunal at an earlier stage, was to decide whether the Applicant was disabled at the date of his dismissal.  The Tribunal decided he was not.  The Applicant appeals against that decision.  The Respondent seeks to uphold it for the reasons the Tribunal gave.  Directions sending this appeal to a full hearing were given in chambers by His Honour Judge Richardson.
The Legislation

5.	The relevant provisions of the Disability Discrimination Act 1995 are section 1, which defines disability, as follows:

“1.	Meaning of “disability” and disabled person”
(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.
(2)	In this Act “disabled person” means a person who has a disability.”

6.	The reference to Schedule 1 is to a schedule which contains provisions supplementing section 1.  So far as is material to the appeal, the relevant provisions of the Schedule are as follow:

“Long-term effects
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.
(2)	Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.
…
Normal day-to-day activities
4.	(1)	An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following- 
(a)	mobility;
(b)	manual dexterity;
(c)	physical co-ordination;
(d)	continence;
(e)	ability to lift, carry or otherwise move everyday objects;
(f)	speech, hearing or eyesight;
(g)	memory or ability to concentrate, learn or understand; or
(h)	perception of the risk of physical danger.
…
Effect of medical treatment
6.	(1)	An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.
(2)	In sub-paragraph (1) "measures" includes, in particular, medical treatment and the use of a prosthesis or other aid.
…
Progressive conditions
8.	(1)	Where -
(a)	a person has a progressive condition (such as cancer, multiple sclerosis or muscular dystrophy or infection by the human immunodeficiency virus),
(b)	as a result of that condition, he has an impairment which has (or had) an effect on his ability to carry out normal day-to-day activities, but
(c)	that effect is not (or was not) a substantial adverse effect,
he shall be taken to have an impairment which has such a substantial adverse effect if the condition is likely to result in his having such an impairment.”

7.	By section 3 of the Act, guidance may be issued by the Secretary of State.  This must be taken into account by any Employment Tribunal or Appeal Tribunal determining matters under section 1.  The Secretary of State did issue guidance, the sole relevant provisions of which, for the purposes of the issue before the Employment Tribunal was A1 which provides as follows:

“A1	The requirement that an adverse effect be substantial reflects the general understanding of “disability” as a limitation going beyond the normal differences which may exist among people.  A “substantial” effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects.  A “substantial” effect is one which is more than “minor” or “trivial”.”

and A15 which deals with progressive conditions.

8.	The scheme of these guidance paragraphs is that those with the prefix A relate to guidance on the meaning of substantial adverse effect.  Those with a prefix B deal with the meaning of long-term effects and those with the prefix C with normal day-to-day activities.  The Tribunal directed itself by reference to those relevant provisions, to the guidance and to the judgment of the Court of Appeal in Kirton v Tetrosyl Ltd [2003] IRLR 353.

The Facts

9.	We set out the facts tentatively as there has not yet been a hearing of the substantial issues.  The Respondent is a supplier of quality knitwear in Leicestershire.  At the time it employed 101 people.  In 2002 it is said it had to address labour costs.  The Applicant was employed by the Respondent as a Head Technician at a salary of £18,000 a year from 1989 until the relationship ended by his dismissal on 7 January 2003.  

10.	During the previous 12 months, following a visit to his general practitioner, he suffered from cancer.  This caused an impairment in his ability to carry out day-to-day activities which was less than substantial.  At a consultation on 29 November 2002 he was diagnosed with cancer of the left kidney.  An operation was called for, expected to take place shortly before Christmas.  The Applicant told his relevant director about this and that he would be off for some period.

11.	On 27 January 2003 a radical excision of the left kidney was conducted.  The Applicant suffered substantial impairment as a result of that operation for, as was expected, 6-8 weeks.  To his credit, the Applicant was able to find alternative work which, sadly, proved to be too much on two occasions.  By the time of the Employment Tribunal hearing on 23 September 2003 the Applicant was, it was found, still suffering from substantial effects of the surgery.  The Tribunal noted that no distinction is to be drawn between the effects of the surgery for a condition and the effect of the condition itself. If either one of them causes a substantial adverse effect on the ability to carry out day-to-day activities, the definition is satisfied of a disabled person.

12.	The relevant periods, therefore, are: 12 months prior to the date of the dismissal; two months’ projected substantial disability as at that date; and a total of what is accepted to be approximately 12 months, plus 9 months, of effect on day-to-day activities.

13.	The Tribunal found, as a matter of construction, that it was appropriate to consider the language in guidance A15 and to apply that to the definition in paragraph 8 (1).  The Tribunal decided that a reflection of the provision relating to long-term effect is to be imported into paragraph 8 (1).  As a matter of construction it decided therefore that the paragraph did not apply to the Applicant’s condition, notwithstanding its finding in his favour, for it was not to be projected that he would suffer long-term effects.

14.	The evidence in the case was that the Applicant had, as Mr Bishop, his consultant in urological surgery and renal transplantation put it, cancer phobia.  The prognosis for recovery from the surgery was in his case to give him a 20% chance of the disease recurring.  In the consultant’s view, the Applicant was very likely cured of his cancer and stood an 80% chance of a complete cure.  The Applicant found it difficult to come to terms with that very positive prognosis by his consultant.

15.	The Tribunal compared the condition which the Applicant suffered to that of any minor progressive growth such as a bunion.  The Tribunal, as a matter of construction, took into account what would be the long-term effect of the condition.  On the basis of that construction the Tribunal decided that the Applicant did not meet the condition in section 1 of the Act and paragraph 8 of the Schedule relating to progressive conditions.
The Applicant’s Case

16.	The Applicant submitted that the Employment Tribunal had wrongly construed paragraph 8 (1).  It took the word “substantial adverse effect” in 8 (1) (c), disjoined it from the words “has such a substantial effect” at the end of that paragraph and imported into the paragraph the words from section 1 requiring a long-term adverse effect.  That was wrong, for all that was required was that there be an actual or deemed substantial effect of 12 months and an actual substantial effect likely to result, as at the date of the dismissal.  On this construction the Applicant had 12 months of deemed substantial adverse effect and a prognosis for a further 2 months of actual substantial effect and thus he met the condition.  The Tribunal was wrong to use the analogue of a minor progressive growth since a bunion is not in any way comparable to one of the life-threatening diseases cited in paragraph 8.

17.	It was submitted that the Applicant therefore had met all of the conditions in paragraph A15. Application of Kirton (above), it was submitted, led to the conclusion that both the language and the spirit of the Act pointed to the Applicant’s success on the preliminary point.

The Respondent’s Case

18.	On behalf of the Respondent it is contended that the Tribunal made the correct decision.  We recognise the force in Mr Harrison’s point on behalf of his client member, that it gains no pleasure from supporting the Employment Tribunal finding, but is here to uphold the law.

19.	It is accepted that the relevant date for examination is the date of dismissal.  It was contended that paragraph 8 is subject to section 1 and not vice versa because paragraph 8 and other provisions within that Schedule merely supplement and do not substitute section 1.  It was accepted that the example of the Tribunal of a bunion or other progressive growth was not appropriate.  Reference was made to the factual circumstances in Kirton and to the happy prognosis now facing the Applicant.  From the Respondent’s perspective, it had dismissed a person who had undergone surgery subsequently but had fully recovered.  It was against the spirit of the Disability Discrimination Act 1995 that he should be treated as a disabled person.

The Legal Principles

20.	The legal principles to be applied in this case emerge from Kirton and from a judgment of the EAT in Mowat-Brown v University of Surrey [2002] IRLR 235.  Dealing first with Kirton, in that case Pill LJ described the purpose of the statute when judging progressive conditions such as cancer (and Mr Kirton was suffering from prostate cancer), as follows:

“8	The purpose of para. 8 is to protect an employee with a progressive condition to the extent specified in the paragraph.  Parliament had to consider the moment at which such protection was to be given.  The moment of diagnosis of the progressive condition was not chosen.  The paragraph provides that, from the moment the conditions (a) and (b) in the paragraph are satisfied, no sooner and no later, the employee has the statutory protection afforded to disabled persons.”

That purpose was reiterated in paragraph 16 as follows:

“16	I would keep in mind the purpose of the current statute in construing the words ‘as a result of that condition’ in this case.  In deciding the extent of the protection to be given to disabled people, Parliament had to make a series of policy decisions, and those are reflected in the provisions of Schedule 1, which explain and elaborate upon the general definition in s.1.  In my judgment, the court’s task is to construe the words ‘as a result of that condition’ in para. 8(1)(b).  The remaining provisions of the paragraph may throw light on that question, but in the end it is that expression which has to be construed.  I bear in mind that the primary purpose of the paragraph is, as Mr McDermott submits, the protection of disabled people who have progressive conditions from the moment when symptoms first appear.”

and to the same effect Scott Baker LJ agreeing with Pill LJ said this at paragraph 22:

“22	The purpose of para. 8 of Schedule 1 to the 1995 Act is to bring within the ambit of the protection of the Act those who have a progressive condition which would not otherwise be covered by s.1.  This is important because an employer might be tempted to discriminate against an employee who, although not presently disabled to the point of the disability affecting his ability to do his job, was likely to become so in the future.  Symptomless conditions do not fall within the Act.  The trigger is that the individual has an impairment which has (or had) an effect on his ability to carry out normal day-to-day activities and which is likely to get worse, to the point where it has a substantially adverse effect.”

21.	It will be noted that in none of those formulations is emphasis given to the requirement that there should be a long-term effect.  The submissions accepted by the Court of Appeal could be summarised as follows.  In paragraph 14 Counsel is quoted as saying as follows:

“14	…Mr McDermott poses the question: what category of persons does Parliament intend to protect?  It is those persons with progressive disease.”

22.	In our judgment that provides an important indicator to the gravity of the conditions provided for in paragraph 8.  These are diseases.  That makes the analogue with a bunion particularly inappropriate.  These are life threatening.  In most of the cases a person falling victim will die.  In many cases, however, now there is hope and many people with confidence enter into treatment for these conditions from which they recover.

23.	It must also be borne in mind, not only in this case but in others, that in dealing with disability discrimination when a person suffers from a progressive condition, the application of the law must be paramount over emotional considerations.  In this case the Tribunal attempted to apply the law clinically and professionally, for which we give it credit.

24.	The conclusion reached by Pill LJ in Kirton is as follows:

“19	In reaching that conclusion I have borne in mind Mr McDermott’s submission that the closing words of the paragraph are not triggered by the circumstances.  In my judgment, nothing in the wording of the paragraph justifies its construction in any other way than that of following systematically through its provisions and reaching a result.  I see no justification for excluding the operation of the closing words of the paragraph because the condition or impairment in subparagraph (b) is of a different kind and with different symptoms from the condition and impairment contemplated in the closing words.  The condition (cancer) is likely to result in an impairment having a substantial adverse effect within the meaning of those words.  Nor do I see merit in the similar argument that the closing words could not cover the present situation because of the difference between the current impairment and the symptoms which are likely in the future.  In my judgment, nothing in the wording of the paragraph excuses the court from the crucial task of construing the words ‘as a result of that condition’ in the medical and factual context present.”

That means that it is appropriate to go systematically through the provisions of paragraph 8 to decide whether or not the Applicant in the present case is disabled.

25.	To those provisions can be added the judgment of Judge Reid QC and members in Mowat (above) at paragraph 21 where the following is said:

“21	In our judgment the words of the paragraph are clear.  The question to be asked is whether, on the balance of probabilities, the claimant has established that the condition in his case is likely to have a substantial adverse effect.  It is not enough simply to establish that he has a progressive condition and that it has or has had an effect on his ability to carry out normal day-to-day activities.  The claimant must go on and show that it is more likely than not that at some stage in the future he will have an impairment which will have a substantial adverse effect on his ability to carry out normal day-to-day activities.  How the claimant does this is up to him.  In some cases it may be possible to produce medical evidence of his likely prognosis.  In other cases it may be possible to discharge the onus of proof by statistical evidence.”

Conclusions

26.	We accept the submissions made to us on behalf of the Applicant and reject those of the Respondent.  It appears to us that the Tribunal had indeed erred in adding into paragraph 8 (1) the requirement that there should be into the future an impairment which is likely to result in a substantial adverse effect.

27.	The Applicant had met all of the conditions in paragraph A15, that is:

a.	he was suffering from a condition which was likely to change or develop over time;
b.	it was in fact cancer or the sequelae of the operation;
c.	it did have an effect;
d.	some impairment was caused;
e.	that impairment had some effect;
f.	this went beyond mere diagnosis.

28.	Put simply, the Applicant has a progressive condition.  This had an effect on his ability to carry out normal day-to-day activities in the one year preceding dismissal.  But that effect was not substantial.  At the time of his dismissal the condition was likely to result in the Applicant having a substantial impairment, for he was post-surgery predicted to be disabled for 2 months, as indeed was the case not only for those 2 months but for a total of 9 months post-operation. In those circumstances, applying paragraph 8 systematically, the Tribunal ought to have come to the conclusion that the Applicant had met the conditions.  Applying the guidance again to assist in that conclusion is instructive.  It is important to note, as Pill LJ did, that for a person with a progressive condition who is in a special category by reason of paragraph 8, the condition begins to have an adverse effect upon him or her not from the moment of diagnosis, but from the time the effect first takes place.  Thus, the correct approach is to apply Pill LJ’s systematic statement about paragraph 8.

29.	In the alternative, was also submitted to us that the effect of paragraph 8 might displace entirely the requirement for a long-term effect in the case of a person suffering from a progressive disease.  It must be said that Mr Nawbatt responded to a question from us about whether that was the position; and on reflection he agreed it would.  In our judgment that is a difficult proposition to sustain, for it is clear that paragraph 8 does not stand alone as the definition of disability when a person suffers from a progressive condition.  Paragraph 8 does draw upon other aspects of Schedule 1.  It is not necessary for us to decide this matter finally, for, as we have indicated on the facts, the Applicant did have a period of 12 months deemed substantial effect of impairment and, looking forward had at least 2, and in fact 9 months, of actual substantial impairment.  In those circumstances we decline to express a concluded view upon the submission which Mr Nawbatt made.

30.	It appears therefore that the Employment Tribunal, in what is a very carefully reasoned decision and exposition of the facts, has erred in its application of paragraph 8 (1) together with the guidance.  

31.	Having canvassed the disposal of the appeal with both representatives, it is accepted that we could substitute our judgment for that of the Employment Tribunal on the direction which we have given and so we do.  We find that the Applicant was disabled.  We will direct 14 days for the Applicant and Respondent to file evidence on the substantive issue.  The Applicant will apply to the Employment Tribunal for a 2-day hearing to decide unfair dismissal and disability discrimination on the footing that the preliminary issue has been determined in his favour.

32.	Finally we would like to thank very much both Mr Nawbatt and Mr Harrison for the careful and conscientious way in which they have advanced their respective cases today.  The appeal is allowed.