MR MATTHEW GOODWIN v THE PATENT OFFICE [1998] UKEAT 57_98_2110

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1998] UKEAT 57_98_2110

Case No Appeal No. EAT/57/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR MATTHEW GOODWINAPPELLANT

THE PATENT OFFICERESPONDENT

Before

Mr Justice Morison

Date 21 October 1998

MR JUSTICE MORISON (PRESIDENT) : This is an appeal from the majority decision of an employment tribunal sitting at Cardiff, that the tribunal had no jurisdiction to hear Matthew Goodwin's complaint on the ground that he did not have a disability within the meaning of the Disability Discrimination Act 1995 .

The Industrial Tribunal's Decision

The facts upon which the tribunal made its decision were undisputed.

The appellant ["the applicant"] was employed in the Patent Office as a patent examiner from 2 September 1996 until 1 May 1997 when he was dismissed following complaints from fellow employees about his behaviour.

The tribunal found that the applicant was not on proper medication when employed by the respondent and consequently he suffered from 'thought broadcasting' [when he imagined that other people could access his thoughts] and also misinterpreted the words and actions of colleagues in a paranoid fashion. He suffered from auditory hallucinations which would occur at random and would often cause him to leave his office or the building. These problems contributed to the applicant's inability to concentrate for any sustained period.

The applicant cared for himself at home and was able to do his own shopping, cooking and attend to his personal hygiene. Since the dismissal the applicant was put on the appropriate medication and the disturbing symptoms have passed. The tribunal accepted the evidence given by the applicant as the truth.

Section 1(1) of the Disability Discrimination Act 1995 defines disability as:

"a physical or mental impairment which has a substantial and long-term adverse effect on [the applicant's] ability to carry out normal day-to-day activities."

It is for the applicant to establish that he has a disability.

Schedule 1 paragraph 4(1) of the Act states 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- (a) mobility… (f) speech, hearing or eyesight… (g) memory or ability to concentrate, learn or understand… (h) perception of the risk of physical danger."

Schedule 1 paragraph 6(1) of the Act states that:

"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."

Section 6(2) adds that "measures" includes medical treatment.

The tribunal asked itself the question whether the applicant's impairment affected his day to day activities in any of the categories set out in paragraph 1 of Schedule 1 to the Act. The tribunal found that the applicant's concentration, category 4(g), was adversely affected by his illness. The tribunal then stated it had to ask itself whether the effect on the applicant was "substantial".

The majority of the tribunal decided that the applicant

"must have been able to remember, to organise his thoughts and plan a course of action and execute it, in order to carry out his day to day activities of looking after himself at home, getting to and from work and carrying out his work."

They went on to state that:

"…his impairment did to some extent affect his ability to carry out normal day to day activities. However in view of his ability to perform his domestic activities without the need for assistance, to get to work efficiently and to carry out his work to a satisfactory standard, we find that the effect was not 'substantial'."

The applicant therefore failed to satisfy the majority that he was a person suffering from a disability within the meaning of the Act.

The case had been listed for two days. The preliminary issue was concluded on the first day and the majority of the tribunal dismissed the application. Counsel on behalf of the applicant immediately applied for a review on the basis that the interests of justice required it. He claimed that had the tribunal gone on until the second day, a Dr Huws would have been available to give evidence as to the applicant's condition.

The tribunal stated that there was no reason why counsel could not have asked for an adjournment before the closing submissions in order to accommodate the evidence of Dr Huws and it was not in the interests of justice for evidence to be heard after a decision had been reached when the evidence was already available. However the tribunal decided to allow the evidence to be called the following day. It stated:

"In normal circumstances an application for review on such grounds would be refused. However in the circumstances of this particular case where the applicant was a victim of mental illness and had no supporting witness we granted the application."

Dr Huws gave evidence on the second day and the majority of the tribunal held that his evidence entirely reflected that of the applicant, that his illness did not 'substantially' affect his normal day-to-day activities. Counsel for the applicant submitted that examples of the applicant wandering the corridors at work and in the street as a result of his illness, showed his mobility was impaired under paragraph 4(1)(a) of Schedule 1. This was rejected by the tribunal majority on the grounds that he was not more mobile than he should have been, and occasional trips down the corridor did not amount to a 'substantial' effect on his normal day-to-day activities.

In 1995, according to the evidence, the applicant was found walking along a railway line. Counsel argued that the incident was evidence that the applicant had impaired perception of the risk of physical danger, in accordance with paragraph 4(1)(h). The tribunal majority rejected this, on the grounds that one incident did not indicate any lack of perception and was in any event not 'substantial'.

The finding that the applicant was not disabled under section 1 of the Act was upheld by the majority on review, after receiving Dr Huws' medical evidence..

The Appeal

The Employment Appeal Tribunal has been assisted on this appeal by experienced counsel on both sides: Mr Robin Allen QC, leading Mr Declan O'Dempsey [the latter has written a text-book on the Act] for the appellants, and Ms Ruth Downing, instructed by the Treasury Solicitor, for the Respondents. Uniquely, in our experience, Ms Downing had the assistance of the lawyer, Mr Stewart, who was largely responsible for putting into legal effect the policy behind the Act, albeit not as a Parliamentary draftsman.

The substantial question at issue on this appeal is: what is the proper approach to the question whether a person has a disability within the meaning of the Act [the 'disability issue']. With such experienced counsel, it became clear to them as it did, independently, to the Court, that the Tribunal in this case had misdirected itself in law in a number of respects and that their decision could not stand. We can add that it seemed to us most surprising that any tribunal should conclude that a person admittedly diagnosed as suffering from paranoid schizophrenia and who had been dismissed partly because of what one might call bizarre behaviour, consistent with that diagnosis, fell outside the definition in section 1 of the Act. Having arrived at that position, it became clear that there were only two issues for us to consider. First, was there any purpose to be served by remitting the case back to a tribunal on the disability issue? If no, we should substitute a finding that the applicant/appellant has a disability, and remit the matter to a tribunal to consider the case for the Patent Office on justification. If yes, the whole case would have to be remitted to a tribunal. Second, should the remission back be to the same or a differently constituted tribunal?

Both parties, through counsel, invited us to take this opportunity to give guidance to tribunals on the proper approach to issues arising under section 1. As we have been so fully assisted by written and oral argument we feel sufficiently confident to accede to their request. It is plain that Industrial Tribunals would welcome this assistance: the Act itself is relatively complicated, it introduces new legal concepts and the facts in these cases are often difficult to judge. We start, therefore, with general guidance.

Guidance

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 their originating application and response [the IT1 and 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. In many, if not most, disability discriminations cases, as with all other discrimination cases, it will be good practice either to make standard directions designed to clarify issues or to arrange a directions hearing. It may well be that parties will wish to present expert evidence to assist the tribunal, and it would be quite undesirable for any such evidence to be given without proper advance notice to the other party and the early provision of a copy of any expert report to be referred to.

In this case, the employers had listed a catalogue of inappropriate behaviour at work as part of their defence to the claim. But in the last paragraph of their IT3 they "reserve(s) the right to argue that the Applicant's condition did not amount to an impairment for the purposes of the Act". In fact, as it transpired, the respondents did not, at the hearing suggest that the applicant was not impaired; the degree to which he was impaired became an issue, although not contained in the IT3 with sufficient clarity to enable everyone to know at the start of the proceedings precisely what was in issue. It is to be doubted whether the tribunal would have arrived at their conclusion if their attention had been more fully directed to the terms of the IT3.

The role of the Industrial Tribunal contains an inquisitorial element, as Rule 9 of their Rules of Procedure 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 of the procedural rules, might be thought a good model for disability cases. There is a risk of a genuine "Catch Twenty Two" 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.

The tribunal should bear in mind that with social legislation of this kind, a purposive approach to construction should be adopted. The language should be construed in a way which gives effect to the stated or presumed intention of Parliament, but with due regard to the ordinary and natural meaning of the words in question. With this legislation, tribunals are given explicit assistance in two forms, which should detract from the need to adopt a loose construction of the language:

Guidance issued on 25 July 1996 under section 3 of the Act by the Secretary of State [Statutory Instrument No:1996/1996] with statutory effect from 31 July 1996; and

Code of Practice issued on 25 July 1996 but with statutory effect from 2 December 1996.

The EAT repeats what it has said on a previous occasion, namely that, at least during the early period of the Act's operation, reference should always be made, explicitly, to any relevant provision of the Guidance or Code which has been taken into account in arriving at its Decision. Section 3 of the Act empowers the Secretary of State to issue guidance on the disability issue. And in addressing the substantial and long-term conditions [see below] a tribunal "shall" take such guidance into account. But, as the guide makes clear, in many cases the question whether a person is disabled within the meaning of the Act can admit of only one answer. In such clear cases it would be wrong to search the Guide and use what it says as some kind of extra hurdle over which the applicant must jump. The Code gives practical guidance and will be found helpful and informative in almost every case under the Act. Tribunals will bear in mind that a breach of a relevant provision of the Code " shall be taken into account in determining any question".

In this case, the Industrial Tribunal made no reference to the Guidance. It should have done so, we think.

Section 1(1) defines the circumstances in which a person has a disability within the meaning of the Act. The words of the section require a tribunal to look at the evidence by reference to four different conditions.

(1) The impairment condition

Does the applicant have an impairment which is either mental or physical?

(2) The adverse effect condition

Does the impairment affect the applicant's ability to carry out normal day to day activities in one of the respects set out in paragraph 4(1) of Schedule 1 to the Act, and does it have an adverse effect?

(3) The substantial condition

Is the adverse effect (upon the applicant's ability) substantial?

(4) The long-term condition

Is the adverse effect (upon the applicant's ability) long-term?

Frequently, there will be a complete overlap between conditions (3) and (4) but it will be as well to bear all four of them in mind. Tribunals may find it helpful to address each of the questions but at the same time be aware of the risk that dis-aggregation should not take one's eye off the whole picture.

We shall say something about each of the four conditions, and the questions which the tribunal should seek to answer.:

The impairment condition

The applicant must have either a physical or mental impairment. Mental impairment includes an impairment which results from or consists of a mental illness provided that the mental illness is "a clinically well-recognised illness" - see paragraph 1 of Schedule 1, but mental illness does not have the special meaning attributed to it in other legislation. Not all mental impairments will inevitably satisfy the impairment test, and some impairments [e.g. due to alcoholism or tobacco or kleptomania] are excluded: see paragraph 8 of the Guidance. On the other hand, persons whose names appear on the Disabled Persons Register both on 12 January 1995 and 2 December 1995 are to be treated as having a disability without further inquiry, until 2 December 1998. Thereafter, they are to be treated as a person who had a disability in the past, and tribunals will note in that connection the provisions of schedule 2 headed "past disabilities".

As the Guidance makes clear, a sensory impairment such as blindness (complete or partial) or loss of hearing (complete or partial) fall within the definition of a physical or mental impairment. If there is doubt as to whether the impairment condition is fulfilled in an alleged mental illness case it would be advisable to ascertain whether the illness described or referred to in the medical evidence is mentioned in the WHO's International Classification of

Diseases. That Classification would very likely determine the issue one way or the other: see paragraph 14 of the Guidance.

The adverse effect condition

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 acts which is the focus of attention but rather the ability to do [or not do] the acts. Experience shows that disabled persons often adjust their lives and circumstances to enable them to cope for themselves. Thus, a person whose capacity to communicate through normal speech was obviously impaired might well choose, more or less voluntarily, to live on their own. If one asked such a person whether they managed to carry on their daily lives without undue problems, the answer might well be 'yes'; yet their ability to lead a 'normal' life had obviously been impaired. Such a person would be unable to communicate through speech and the ability to communicate through speech is obviously a capacity which is needed for carrying out normal day to day activities, whether at work or at home. If asked whether they could use the telephone, or ask for directions or which bus to take, the answer would be 'no'. Those might be regarded as day to day activities contemplated by the legislation and that person's ability to carry them out would clearly be regarded as adversely affected.

Furthermore, disabled persons are likely, habitually, to 'play down' the effect that their disabilities have on their daily lives. If asked whether they are able to cope at home, the answer may well be 'yes', even though, on analysis, many of the ordinary day-to-day tasks were done with great difficulty due to the person's impaired ability to carry them out. In argument, Mr Blyghton observed that it was partly for this reason that the Green Card Scheme did not work as it had been intended. 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 paragraph 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.

What is a day-to-day activity is best left unspecified: easily recognised, but defined with difficulty. What can be said, is that the inquiry is not focused on a particular or special set of circumstances. Thus, it is not directed to the person's own particular circumstances either at work or home. The fact that a person cannot demonstrate a particular skill, such as playing the piano, is not an issue before the Tribunal, even if it is considering a claim by a musician. Equally, the fact that a person had arranged their home to accommodate their disability would make inquiries as to how they managed at their particular home not determinative of the issue.

It will be borne in mind that the effect of a disability on a person's ability to conduct his daily life might have a cumulative effect, in the sense that more than one of the capacities had been impaired. It is not necessary for the tribunal to go further, if satisfied that one 'capacity' has been impaired, which is sufficient for the adverse effect condition to be fulfilled. Tribunals will bear in mind the provisions of paragraph 8 of Schedule 1 when considering what are described as progressive conditions.

During argument an example was given of a person whose hearing was exceptionally acute. One might say that this was not likely to be regarded as a handicap to the person's ability to carry out his normal day to day activities. Certainly one might say that there was no adverse effect upon his hearing; quite the contrary. However, such a condition could well adversely affect other capacities: for example, such a person might find it impossible or difficult to cope with conversation in a group of people or to go to a busy shop or to concentrate. The condition from which he was suffering would not have a direct adverse effect on the particular capacity, but might well have an adverse effect on a different capacity.

We deal with the question of 'medication', and paragraph 6 of Schedule 1 under the next heading.

The substantial condition

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.

The tribunal may, where the applicant still claims to be suffering from the same degree of impairment as at the time of the events complained of, take into account how the applicant appears to the tribunal to 'manage', although tribunals will be slow to regard a person's capabilities in the relatively strange adversarial environment as an entirely reliable guide to the level of ability to perform normal day-to-day activities.

The tribunal will wish to examine how the applicant's abilities had actually been affected at the material time, whilst on medication, and then to address their minds to the difficult question as to the effects which they think there would have been but for the medication: the deduced effects. The question is then whether the actual and deduced effects on the applicant's abilities to carry out normal day to day activities is clearly more than trivial .

In many cases, the tribunal will be able to reach a conclusion on these matters without reference to the statutory Guidance [which is there to illuminate what is not reasonably clear] see part II, paragraph A1 et seq..

Although Parliament has linked the effect of medication to the 'substantial condition', as we have already said splitting the statutory words into conditions should not divert attention from the definition as a whole, and in determining whether the adverse effect condition is fulfilled the tribunal will take into account deduced effects.

The long term condition

Paragraph 2 of Schedule 1 applies, as does paragraph B of the Guidance, where reference to it is necessary. The provisions appear to be straightforward and we have nothing useful to say about them.

The Decision in this Case

It seems to us that the Industrial Tribunal have not looked at the effect which the applicant's disability had on his abilities. They appeared to have moved from the finding that the applicant was able to cope at home to the conclusion that, therefore, he fell outwith the provisions of the Act. A close scrutiny of the IT 3 and the employers' own documents would inevitably have led them to the conclusion that the applicant was simply unable to carry on a normal day to day conversation with work colleagues. The Respondents stated, and we summarise, that on his employment the applicant did not bring to their attention "the serious nature of his on-going illness". They referred to various incidents of the applicant's odd behaviour at work; and they allege that he was warned about his behaviour towards two female members of staff.. They then stated that:

"As a result of [ their ] concerns about the Applicant's health, at the end of October 1996 [they] decided to seek the advice of the Occupational Health Service Agency about the applicant's medical history. The OHSA reviewed the available medical papers followed by an examination on the Applicant carried out by the senior medical officer Dr Huw Davies. His conclusion was that the applicant had been and was suffering from a severe health condition and that the Applicant did not have the capability of providing a regular and effective service to [ them ]."

Furthermore, the employers produced a memorandum recording the fact that the manager was complaining that the applicant was unable to hold a normal conversation. This was good evidence of the fact that the applicant's capacity to concentrate and communicate had been adversely affected in a significant manner. It seems to us that in this case the question whether the applicant was, at the relevant time, disabled within the meaning of the Act admitted only one conclusion: he was. That does not, of course mean that his application will succeed. The tribunal will have to consider the question of justification in accordance with section 5 of the Act. That question is entirely for them to decide.

The appeal is allowed. We make a finding that the applicant was a disabled person within the meaning of the Act at the relevant time; we make no order on the cross appeal. The case is remitted back to a differently constituted tribunal for the continuation of the hearing. We think it fairer that the remission should be to a fresh tribunal so that neither party is left with a feeling, however unjustified, that the die was cast as to the result.