MR A MCKENZIE v EAST SUSSEX COUNTY COUNCIL [2001] UKEAT 1346_00_0405

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1346_00_0405

Case No Appeal No. EAT/1346/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A MCKENZIEAPPELLANT

EAST SUSSEX COUNTY COUNCILRESPONDENT

Before

Ms Recorder Cox

Date 4 May 2001

[1]APPEARANCES For the Appellant MR DAVID GRIFFITH- JONES QC (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MS RECORDER COX QC This appeal comes before us this morning by way of a preliminary hearing, and it is an appeal from the Decision of an Employment Tribunal sitting at Brighton, promulgated on 21 September 2000.

[2]The unanimous Decision of this Employment Tribunal was that the Appellant's claims for breach of contract and unlawful discrimination, contrary to Section 1 of the Disability Discrimination Act 1995 should be dismissed. I should make plain that the breach of contract claim was dismissed upon withdrawal, and the only matter therefore, that we are concerned with, is the Tribunal's finding on disability discrimination, which was that the Appellant was not a disabled person, within the meaning of Section 1 of the Act.

[3]The findings of fact contained in the Employment Tribunal's Reasons are important, and I shall refer to them. They begin, essentially, at paragraph 8 of the Decision, where the Tribunal records the fact that the Appellant's GP, Dr Mathias, wrote to the Respondent's Senior Occupational Health Adviser on 28 May 1998, in response to a request about the Appellant's medical condition; and the request had been made because the Appellant was having frequent short periods of sick leave.

[4]Dr Mathias referred to the recurrent abdominal pain the Appellant had experienced since 1989, diagnosed the problem as "non-ulcer dyspepsia" and stated that by and large, the Appellant was fit enough to do his work. It seems that that is a mis-description, and that there was, indeed, an ulcer (though the evidence for this came after the alleged discrimination), but the nature of the problem, i.e. dyspepsia (a disorder of the digestion) is not in dispute.

[5]It is clear that the Appellant then completed health questionnaires, provided by the Respondent, and in each of the questionnaires, when asked if he had ever in his life, to his knowledge, had any of the following:

"recurrent gastric, stomach trouble, vomiting"

In each case the Applicant answered "No". In each questionnaire the Applicant also stated that he was not taking any medicines or tablets prescribed by his doctor."

[6]The Tribunal then, in paragraph 10, referred to:

"Records kept by the Respondent and produced to the Tribunal to show that the Applicant was absent from work for health reasons on seven occasions between June 1997 and May 1998. Of these, five were clearly unrelated to the Applicant's dyspepsia. The Applicant claimed that two absences could be related and he referred to those for sickness and diarrhoea in August 1997 and a viral infection treated by antibiotics in August 1997. The Tribunal is not satisfied on the evidence that any of these absences was caused by, or related to, the Applicant's condition of dyspepsia."

They refer to the Appellant's evidence on the symptoms of dyspepsia and their practical effects as being, as they describe it:

"somewhat vague and inconclusive"

But they make a finding that the Appellant could go for several months without any symptoms but would then have attacks for which he would normally take tablets.

[7]They refer to the period up to June 1998 when they say that:

"the Applicant had experienced no symptoms apart from a mild burning sensation in his throat. On between three and five occasions during the remaining period, however, he had experienced more severe symptoms. The taking of the Zantac tablets soon relieved those symptoms, but if he did not take the tablets, the Applicant suffered moderate stomach pains, burning sensations in the throat and a feeling of nausea. If he laid down, however, the symptoms eased in ½ hour to 2 hours. If he had no tablets available, he would get up and go to the fridge in order to drink a glass of milk. This also alleviated the symptoms. During these attacks, the Applicant felt too unwell to do anything but lie on his bed."

[8]They then refer to evidence given to the Tribunal by the Appellant's representative, Mr Langmuir, who described a bad attack of dyspepsia suffered by the Appellant during a holiday they had together in Turkey in 1994, when the Appellant was observed to be in severe pain. They say that the:

"evidence could not really add anything to that given by the Applicant and the Tribunal preferred to rely upon the Applicant's own description of his symptoms in reaching its findings."

[9]They refer then to evidence given to the Tribunal by Dr Colin McKee in his capacity as Medical Adviser to the Respondent to this appeal:

"13…….On the basis of that evidence, the Tribunal finds that Zantac is prescribed for mild to moderate dyspepsia with alternative treatments being available for more severe dyspepsia. The Tribunal accepts Dr McKee's conclusion that the Applicant's symptoms, without treatment, would not be at the "severe end of the spectrum"

. The Tribunal also accepts Dr McKee's unchallenged evidence that approximately 40% of the adult population of Britain experiences dyspepsia at some time in their lives and that approximately 25% of the adult population will experience dyspepsia at some time in any one year period. 14. They noted Dr McKee's opinion that the Applicant's condition would not have a substantial and long-term adverse effect on his ability to carry out normal day to day activities, but attached no weight to that opinion since it is a legal issue which falls to the Tribunal to determine."

[10]In paragraphs 15 onwards of their Extended Reasons, the Tribunal correctly identified and directed themselves as to the relevant statutory provisions, and indeed to the supplemental provisions in Schedule 1 to the 1995 Act, and the Code of Practice. They note that they had regard to those supplemental provisions generally, in Schedule 1 and had regard to the:

"guidance on matters to be taken into account in determining questions relating to the definition of disability."

[11]They then refer to the guidance given by this Appeal Tribunal in the case of Goodwin v The Patent Office

[1999] IRLR 4

and, by reference to that Decision, indicate that they looked at the evidence by reference to the four different conditions referred to in Section 1 of the Act.

[12]In paragraphs 18 onwards they then set out their findings, in relation to those four different conditions. They find firstly, that they are:

"satisfied that the Applicant's condition of recurrent dyspepsia constitutes a physical impairment, for the purposes of Section 1."

They then go on to consider "whether the impairment affects the Applicant's ability to carry out normal day to day activities in one of the respects set out in Schedule 1 para. 4(1) and whether it has an adverse effect. In accordance with Schedule 1 para 6, the Tribunal has disregarded the effects of the drugs taken by the Applicant and has judged the effect of the impairment on the basis that it was untreated." In paragraph 20 they describe the effect of a severe attack which would be that:

" the Applicant would normally be lying down and would only be able to move around with some difficulty. In the result, his ability to carry out normal day to day activities was affected in respect of his mobility (which was temporarily impaired in the sense that he was able to walk only short distances, and then with discomfort) and his ability to lift or carry everyday objects."

And they find that:

"There was adverse effect."

They note that: "Mobility is one of the activities referred to in Schedule 1 Para 4" and refer to the fact that they have taken account of the guidance, where the ability to lift and carry is also referred to.

[13]In paragraphs 21 and 22 of their Reasons, they then go on to consider whether this adverse effect was substantial, in the sense of being more than minor or trivial, and they indicate again that they have taken account of paragraph A1 in the Guidance. They concluded that the adverse effect could not be categorised as substantial within the meaning of section 1.

[14]This morning, we have had the benefit of assistance from Mr Griffith-Jones QC through the ELAAS scheme on behalf of the Appellant, who has addressed us on some proposed amended grounds of appeal, which go to this final issue, as to whether or not the adverse effect was substantial, on which the Appellant lost in the Employment Tribunal below. He has submitted that this Employment Tribunal failed properly to direct themselves, having regard in particular, to the words in paragraph 2 of Schedule 1; and he suggests that a reading of this Employment Tribunal Decision indicates that they erred in conflating two separate and distinct issues: namely whether or not an attack or the illness, or the condition was "substantial" and whether it is "long-term".

[15]We have considered these new proposed grounds of appeal very carefully, and of course, the submissions which Mr Griffith-Jones made. However we find that we are unpersuaded that an arguable error of law in this Decision has been identified.

[16]It is clear, in our view, when you read paragraphs 21 and 22, that the Tribunal have had regard to the issues which they should consider having regard to the matters contained in the legislation, the Code of Practice and the Guidance, and in paragraph 22 they indicate that they clearly accept that:

"the fixing of frequency and duration of the Applicant's attacks is not an exact science, but it has concluded that the Applicant was adversely affected on up to five occasions during the year to June 1998 for a period of up to two hours on each occasion. Such an adverse effect, in its extent and duration, does not go beyond that which the Tribunal would regard as a normal experience of many people, not merely the 25% of the adult population who will experience dyspepsia on at least one occasion in any one year period. Taking into account the extent, duration and frequency of the adverse effects experienced by the Applicant, the Tribunal is in no doubt that they cannot be categorised as "substantial" within the meaning of Section 1 of the 1995 Act."

Having made that finding, they then conclude that it is unnecessary for them then to consider whether the adverse effects are long term. We consider that this was a finding they were entitled to reach on the evidence before them and that they clearly understood the distinction between the adverse effects being "substantial" and "long term".

[17]We take the view therefore that there is no arguable error of law indicated in the reasoning of this Employment Tribunal and that being so, we do not think it appropriate that this matter should proceed any further to a full hearing, and the appeal is dismissed.