MR S K GANASE v KENT COMMUNITY HOUSING TRUST [2001] UKEAT 1231_99_2303

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1231_99_2303Case No Appeal No. EAT/1231/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S K GANASEAPPELLANTKENT COMMUNITY HOUSING TRUSTRESPONDENT
Before
Mr Justice Hooper Miss C Holroyd Mrs T A MarslandDate 23 March 2001
[1]APPEARANCES For the Appellant Dr D Singh Representative 26 Matthews Court Highbury Grange London N5 2PD For the Respondent MISS S MOOR (of Counsel) Instructed by: Messrs Lees Lloyd Whitley Solicitors 15-19 Kingsway London WC2B 6UN MR JUSTICE HOOPER This is an appeal against the Decision of the Employment Tribunal held at Ashford in Kent, and chaired by Mr G W Davis. The Tribunal gave substantial Extended Reasons which were sent to the parties on 23 June 1999. The facts can be found set out fully in the Extended Reasons.[2]The Appellant, we were told, was a highly qualified nurse with the National Health Service. There is no doubt that it was agreed between the parties that the Appellant suffers from chronic fatigue syndrome, otherwise known as ME. The ME has lasted for some years and, as the Tribunal found, could be regarded as long term under the Disability Discrimination Act, 1995 .[3]The Appellant started working with the Respondent on 30 April 1986. In March 1998, he was given notice of termination of his employment with effect from 19 June 1998.[4]The Appellant was dismissed by the Respondent for incapability because of ill health. The Appellant had last worked for the Respondent in February 1997. At the date of termination he had been off sick for approximately six months. During 1996 he had endeavoured to work from nine o'clock in the morning until five o'clock in the evening, but as the day wore on he began to feel more tired and often experienced pain. According to the Tribunal, he endeavoured to hide his problems from his work colleagues. He gave up hobbies because of the condition in which he found himself.[5]Since ceasing to work for the Respondent in February 1997, he had remained at home. His wife works, his children are at school, and he spends most of his time at home alone. He has resumed some social life, but not of great significance. According to the Tribunal, the Appellant's daily routine is fairly standard. He usually gets up and has breakfast with his family. He then goes for his first ten minute walk of the day, and on returning, reads the newspapers for about half an hour. The Appellant goes back to bed between 9.30 and 10.00 am and gets up again at noon, when he gets lunch for himself. After lunch he goes for a second walk of the day, and on returning, comes back to the house to potter around and do some cooking so that he can prepare the evening meal for his family. In the afternoon, he reads a little more, and then when his children come in from school and his wife returns from work, they have supper together as a family, and watch some television. Later, he goes for his third ten minute walk of the day. Having done that, he would watch some television and retire to bed.[6]In paragraph 6 (ix) the Tribunal found:
"(ix) After about five minutes' walking, his heels become painful but he is able to overcome this by continuing to walk"
The Appellant had considered part-time working. Although he says that he can cope with normal work up to four or five hours a day, he gets tired by the middle of the afternoon. With part-time working, he would have had to travel on buses and trains for up to two hours a day, so he said, and this travelling time would render part-time work impracticable. The Appellant can travel on public transport, he can drive a car, although after about half an hour, his legs ache. In paragraph (xii) the Tribunal found: "The Applicant has no problems with manual dexterity or physical co-ordination, nor does he have any problem with continence. He is able to lift and carry everyday objects and now has no problem with his speech, although when he was working prior to 1997 he told us that this became slurred during the latter part of the afternoon. The Applicant appears to have no problem with hearing or eyesight, or with the ability to concentrate , although he told us that he reads the paper for only half an hour at a time. He has no problem with the perception of the risk of physical danger." (Underlining added)[7]The Tribunal then referred to a report from Dr Denis D'Auria which was, according to the Tribunal, not challenged in any substantial way. One of the challenges can be found set out in paragraph (xiii). In paragraph (xv) the Tribunal stated:
"The Applicant did not inform Dr D'Auria that he had any difficulty with concentration or other day to day activities. Indeed, he said that he could do all the jobs required of him at work provided that he would be helped by a shorter day. He did not mention any difficulty with mobility or speech."
The Tribunal then referred to the conclusion of Dr D'Auria that the Appellant's clinical condition: "does not have a substantial adverse effect on normal day to day activities".[8]In paragraph 11, the Tribunal went on to make its findings against the background of the findings of fact, which we have summarised and which are to be found in paragraph 6(i) - (xvi).[9]Before looking at the findings, we turn briefly to the law. Section 1 of the Disability Discrimination Act 1995 provides that a person has a disability, for the purposes of the 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 is made subject to Schedule 1, and in paragraph 4.(1) of Schedule 1 provides:
"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"
There are then listed a number of day-to-day activities and they include mobility, and the ability to concentrate. Paragraph 6.(1) of Schedule 1 reads as follows:
"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."
[10]Dr Singh accepted in argument that one way of approaching paragraph 6.(1) is to ask what would happen if the person concerned was not taking the measures to treat or correct the impairment. The relevant measure in this case, so it is submitted by Dr Singh, is the taking of a drug which has, in the papers, two names: "Lustral" and "Sertraline". We shall use the word "Lustral". The Appellant at this time was being prescribed 100 mg to be taken at night. Applying paragraph 6(1) the question would be: "If the Appellant was not taking Lustral what effect would there be?" If the effect would be that there would be an impairment, in this case of either mobility or concentration that was likely to have a substantial adverse effect on the ability of the Appellant to carry out normal day-to-day activities, then the impairment is to be treated as having that effect.[11]This appeal came before His Honour Judge Collins CBE, Mr Smith and Mr Young CBE, on 21 February 2000, as a preliminary hearing. In paragraph 6, His Honour Judge Collins set out paragraph 6 of Schedule 1 and went on to say:
"In other words the question has to be decided on the basis of what symptoms 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"
Dr Singh agreed, in argument, that the drug Lustral is used both for depression and pain. He told us that it is one of the principal drugs prescribed to deal with the condition of ME.[12]In paragraph 9, His Honour Judge Collins recorded the evidence about mobility. He summarised the evidence in this way:
"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."
We agree with the Appeal Tribunal's summary of the evidence. It seems to us that the Employment Tribunal was finding that the Appellant overcame the pain by continuing to walk.[13]In paragraph 11, His Honour

Judge Collins stated:

"I have already mentioned paragraph 10 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."
We shall call that, in this judgment, "ground 1". Ground 1 raises the paragraph 6 of Schedule 1 point.[14]In paragraph 12,

Judge Collins went on to say:

"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 [ground 1] 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."
We shall call those respectively, "grounds 2 and 3". Insofar as the alleged inability to read the newspaper for more than thirty minutes, one must bear in mind that the Tribunal had concluded in their findings, (in paragraph 6 (xii)) that the Appellant appears to have no problem with the ability to concentrate, albeit he told the Tribunal that he read the paper for only half an hour at a time. Those are, therefore, the only grounds which the Appellant can properly argue before us, and indeed Dr Singh, faithful to that ruling, has in very large measure kept his arguments to those three grounds.[15]Following the Order that there was to be a full hearing, His Honour Judge Peter Clark, in Chambers, made an Order that the Chairman's comments on the grounds should be requested. Those comments will be found at page 60:
"I have read the relevant documents and I agree with the Respondent's comments in paragraph 3.6 to 3.9 of the Respondent's answer. Neither the Applicant in evidence, nor his representative in his very brief submissions to us, suggested that the Applicant's normal day-to-day activities would have been different but for the medication or medical treatment. The only evidence by the Applicant on the effect of the medication was when he told us: Evidence in chief: "
I'm on drugs. I sleep a lot." Cross-examined:
"Medication made a difference to my life afterwards. Medication is an anti-depressant"
. In relation to 3.8 of the Respondent's answer, the Applicant said:
"After 5 minutes of walking, my heels would get painful, but I would continue and go beyond it."
In relation to paragraph 3.9 of the Respondent's answer, we had no evidence that the Applicant had any difficulty in concentrating on either the television or the newspapers."[16]Dr Singh makes criticism of the recorded passage in the cross-examination of the Appellant. He says that having regard to the Appellant's long term skills as a nurse in the National Health Service, it is not likely that he would have said that the medication was an anti-depressant. We, obviously, accept what the Chairman has said.[17]Dealing then with ground 1, Dr Singh drew our attention to three different passages in the report of Dr D'Auria. He referred us to page 21, paragraph 5.28 where Dr D'Auria wrote that there was a recommendation to the Appellant to take Lustral:
"Because this was known to ease the intensity of pain."
He referred us to page 23 which records that the Appellant takes 100 mg Lustral at night. He then referred us to page 37, paragraph 3. In response, Miss Moor also put before us paragraph 2 and we shall therefore read both paragraphs:
"2. In a letter to his general practitioner, dated 12 November 1997, Dr Sharpe indicates that there is no strong evidence for depression, but despite this she started him on Sertraline, without great effect. In the absence of any therapeutic effect, she decided to increase the dose. 3. Dr Sharpe wrote to Dr Wylie, Occupational Physician at Nunnery Fields Hospital on 21 January 1998 and a copy of this letter is on file. Dr Sharpe reports that her assessment of Mr Ganase was that he was experiencing chronic fatigue with no obvious cause, possibly triggered by stress. There were occasional periods of depression over the past few years, but the depressive features had not been so prominent. His appetite was good and weight was steady. His sleep pattern was reasonable, but he was restless at times. Sertaline helped his pain."
[18]To those passages referred by Dr Singh, we add ourselves, a further passage which can be found set out at page 40, paragraph 17. In paragraph 17, Dr D'Auria is giving extracts from the general practitioner's notes. In paragraph 17 there is a reference to a letter from the consultant in charge of the pain management clinic, and the letter said that the Sertraline conferred some benefit on the pain. The letter said that the pain continued to be aggravated by activity and was therefore thought to be related to ME.[19]It is accepted by Miss Moor now that Lustral can be and was in this case prescribed for pain relief as well as depression. Dr Singh's submission to us was that in the absence of the nightly dose of Lustral, the Appellant's mobility would have been much worse and his concentration would have been much worse. The Tribunal ought therefore to have considered paragraph 6(1) of Schedule 1. Miss Moor reminds us of the case of Kumchyk v Derby City Council [1978] ICR 1116 and also brought to our attention a case called Goodwin v The Patent Office [1999] IRLR 4 . We do not feel it necessary in this case to examine the authorities.[20]It is obvious that the Appellant, who seeks to raise a new point not advanced below, faces some considerable difficulty. Was there any evidence which could have brought paragraph 6(1) into play. The mere fact that Lustral has an effect upon pain does not, and could not, mean that paragraph 6(1) automatically applies. If we look at the evidence, as recorded by the Chairman, there is no suggestion that any evidentiary basis was laid for the application of paragraph 6(1). In cross-examination, as we have already indicated, the medication was described as an anti-depressant. Unless the necessary evidentiary basis is laid before the Tribunal, it cannot be expected to apply paragraph 6(1).[21]We have looked at the case carefully. The Appellant was not represented by either a barrister or a solicitor, but he had considerable help from Dr Singh. As the Chairman said in his comments there was nothing either in the evidence of the Appellant, or his representative to suggest that the Appellant's "normal day-to-day activities would have been different but for the medication or medical treatment." In those circumstances, this ground fails.[22]We turn very briefly to the other two grounds upon which we did not ask for any response from Miss Moor. We have already shown how His Honour Judge Collins permitted the mobility ground to be argued, and we now therefore turn to the findings of the Tribunal at the conclusion of their Decision. The Tribunal accepted that the Appellant had an impairment, ME, and the impairment was one which has been long-term. The Tribunal then asked themselves the correct question - has that impairment made:
"a substantial and long-term adverse effect on the Applicant's ability to carry out normal day to day activities"
[23]They then said that they understood substantial to mean, in effect, something which is more than "minor" or "trivial". In paragraph 14 the Tribunal stated that much of the day's hearing had:
"Not surprisingly, ……..concentrated on "normal day to day activities" " and "we have had specific regard to the modalities as expressed by Dr D'Auria, in paragraph 12.15 of his report and in paragraph S 1417 of the Guidance."
In paragraph 15, the Tribunal went on to state:
"15 In considering how the Applicant's normal day to day activities have been affected, we find that there is no substantial effect. The Applicant is mobile, he goes for three ten-minute walks a day without difficulty and is able to use public transport and can drive his car for half an hour before his leg aches. He has no problem at all with manual dexterity or physical co-ordination and effectively runs the household in the absence of his wife at work. He has no problem with continence or the ability to lift and carry, nor does he now have any problem with speech, hearing or eyesight, although we accept that his speech did become slurred at the end of the day when he was working in 1996. The Applicant has no problem with hearing or eyesight, nor with his memory or ability to concentrate, although again we accept he reads the newspapers only for half an hour at a time. There is no problem with the perception of the risk of physical danger."
[24]The Tribunal went on to say that the findings are based on the evidence, both from the Appellant himself, and taking into account the very detailed report of Dr D'Auria. They noted that the report was, except for one matter, essentially unchallenged. Against that background, they had no hesitation in finding that the Appellant did not have a disability within the meaning of the Disability Discrimination Act 1995 .[25]It is submitted by Dr Singh that the conclusion reached by the Tribunal on the issue of mobility was one which it could not properly reach. Before reaching our conclusions on ground 2, we turn to ground 3, which raised the issue of lack of concentration. We have already pointed to the findings of the Tribunal that there was no impairment of concentration, although it accepted that he read the newspaper for only half an hour at a time.[26]This Tribunal cannot interfere with the decision of the Employment Tribunal unless the conclusion reached by the Tribunal is perverse. Although Dr Singh sought to urge upon us that there was only one conclusion here, namely that he did have impaired mobility and concentration within the meaning of the Act, we unanimously take the view that the conclusions of the Tribunal were not perverse. This appeal fails.