MR S K GANASE v KENT COMMUNITY HOUSING TRUST [2000] UKEAT 1231_99_2102

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 1231_99_2102Case No Appeal No EAT/1231/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S K GANASEAPPELLANTKENT COMMUNITY HOUSING TRUSTRESPONDENT
Before
His Honour Judge CollinsDate 21 February 2000
[1]APPEARANCES For the Appellant Dr D Singh 26 Matthews Court Highbury Grange London N5 2PD For the Respondent JUDGE COLLINS : This is the preliminary hearing of an appeal against the decision of an employment tribunal sitting at Ashford, the extended reasons being promulgated on 23 June 1999. The hearing before the tribunal was itself a preliminary hearing on the question of whether or not the appellant had a disability within the Disability Discrimination Act 1995. It was held that he did not have such a disability. In consequence his application for compensation for unfair dismissal was adjourned generally.[2]It was accepted on all sides that the appellant had a longstanding condition of chronic fatigue syndrome. There was evidence from Dr. Ismail, although it was in an old report dated December 1997, that he started getting symptoms in 1990, which had become crystallised and recognised as chronic fatigue syndrome in later years. The question for the tribunal was whether that condition, that was undoubtedly an impairment, had a substantial and long-term adverse effect on his ability to carry out normal day to day activities.[3]At the tribunal Mr Ganase was represented by Dr. Singh who also represented him today. Dr. Singh has been extremely helpful on Mr Ganase's behalf. He has told us that his own speciality is that of international relations and he has kindly given his assistance as an advocate to Mr Ganase.[4]In the notice of appeal dated 3 August 1999, the complaint was made that:
'The tribunal failed to direct themselves correctly on the question of disability when considering the element of substantial adverse effect on the applicants day to day activities.'
[5]The tribunal made it clear that they paid very great regard to the evidence of the appellant himself. They also had regard to the evidence in his report and in person of Dr. D' Auria, the Occupational Health Officer. As I have indicated they also had an elderly report from Dr. Ismail. The circumstances in which no more up to date report was submitted by her are set out in paragraph 4 of the reasons.[6]Without going into the scheme of the act in any detail, s1 states what is a disability within the meaning of the act. Schedule 1 supplements s 1; in particular by paragraph 4 providing that an impairment is to be taken to affect the ability of the person concerned to carry out normal day to day activities only if it affects one of the following and then lists what has been referred to as modalities, for example: mobility, manual dexterity and so on. And importantly for this case, in paragraph 6 of schedule1 it is provided 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.'
In other words the question has to be decided on the basis of what symptons Mr Ganase would have had if he had not been taking drugs. In this case the evidence was that he was taking 100mg every night of a drug called Lustral which according to the evidence before us was substantially a pain killing drug, although we have been told it is also used in certain cases for depression.[8]The argument in this preliminary hearing, at which we have to decide whether there is a reasonably arguable point of law to warrant the case going forward to a full tribunal, is over what evidence there was to suggest that the impairment affected one or more of the modalities. The notice of appeal and skeleton argument are principally concerned to point out areas where the decision of the tribunal was inconsistent or unreliable or whether the evidence of Dr D'Auria conflicted within itself or with other evidence and it is far from clear from the notice of appeal and the skeleton argument precisely what effect it is being contended that the appellant's chronic fatigue syndrome had on the modalities. In the upshot I think it is fair to say that Dr. Singh's submission concentrated most powerfully on the questions of mobility and the ability to concentrate.[9]The evidence on mobility was that the appellant was finding himself in pain in his heels after walking for five minutes, although continuing to walk got over it. The tribunal held that he had about three 10 minutes walks every day. The assumption is presumably that during the middle of each walk he had some pain in his heels and got over that pain by continuing to walk.[10]The evidence also was that Mr Ganase could read the newspaper for about 30 minutes and that was the limit of his concentration. Now it must be emphasised that it is not the responsibility of this appeal tribunal to balance all the evidence and see whether it would answer the question in the case differently to the tribunal. We are only concerned with points of law However, this is a developing jurisdiction and it seems to us that there is one major difficulty in the tribunal's reasoning which does justify the case proceeding.[11]I have already mentioned paragraph 6 of schedule 1 and it seems to us that there is an omission in the tribunal's reasoning. The tribunal were well aware that the applicant was taking regular medication but do not discuss what effect there would have been on day to day activities had the appellant not been taking it. That does seem to us to give rise to a reasonably arguable point of law.[12]We allow this case to go forward to a full hearing on the question of the effect of paragraph 6(1) of schedule 1 to the 1995 Act and also on questions as to whether the appellant's pain after five minutes walking and his inability to read the newspaper for more than thirty minutes, should in any case have been held by the tribunal to be interference with his day to day activities.