MR S B CRUICKSHANK v VAW MOTORCAST LTD [2001] UKEAT 645_00_2510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 645_00_2510Case No Appeal No. EAT/645/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S B CRUICKSHANKAPPELLANTVAW MOTORCAST LTDRESPONDENT
Before
His Honour Judge J Altman Mrs T A Marsland Mr R N StrakerDate 25 October 2001
[1]APPEARANCES For the Appellant IN PERSON For the Respondents MR C GRAHAM Solicitor Instructed By: Messrs Ford and Warren Westgate Point Westgate Leeds LS1 2AX JUDGE J ALTMAN : This appeal concerns the evaluation of a disability for the purposes of the Disability Discrimination Act 1995 where, as a result of some medical condition the effects of the "ability to carry out normal day-to-day activities" may fluctuate and indeed may be exacerbated by conditions at work. Two questions are raised. First, should the disability be assessed as if the employee is suffering from the condition whilst at work or when he is away from work and able to pursue most day-to-day activities or in some other way? Secondly when defining the "impairment" where there are fluctuations in the severity of symptoms, at what point in time should the Tribunal assess the disability, what period should be taken into account and what circumstances should be taken into account in assessing it?[2]This is an appeal from the Employment Tribunal sitting at Leeds on 6 and 7 March 2000 when they found that the Appellant was not a disabled person within the meaning of the Disability Discrimination Act 1995 and that he was not unfairly dismissed. Having determined that the Appellant was not disabled, within the Act, the Employment Tribunal found it unnecessary to go on to consider any question of unlawfulness.[3]The Employment Tribunal held that the respiratory difficulties from which the Appellant suffered did not have a "substantial and long-term adverse effect on (the Appellant's) ability to carry out normal day-to-day activities"[4]The Appellant began work for the Respondents in February 1995 as a Core Maker. In January 1998, as a result of a report from Dr Smeed, the Respondents' Medical Adviser at the time, that the Appellant should not work where he would be exposed to fumes, the Appellant was transferred to driving a forklift truck in the Despatch Department. Dr Williams, a Consultant Physician in General and Respiratory Medicine reported in early 1999 that it was likely now that the Appellant was suffering from occupational asthma but also concluding that it was well controlled. Dr Smeed also at that time reported that it was likely that the Appellant was suffering from occupational asthma "although he was coping well with the forklift truck duties and his health was not at that stage being aggravated."[5]That report was prepared in March 1998, about two months after the transfer to Despatch duties.[6]Towards the end of 1998 the Appellant's duties were changed so that he ceased working predominantly on Despatch, away from the Core Shop, to operate the forklift near the Core Shop. This change was as a result of a management decision designed to accommodate their wish to be able to supervise another employee in the Despatch Department. The Employment Tribunal recorded that the Appellant had 13 weeks' absence in 1998, of which about seven weeks were before transfer to the Despatch Department, and three weeks' absence were due to an ear infection, leaving only about two weeks' absence at the end of the year due to breathing difficulties which were asthma related, presumably after transfer back to near the Core Shop. The period of work in the Despatch Department appears to have been virtually absence free, so far as the asthma was concerned.[7]In 1999, after transfer to forklift driving near the Core Shop, there were further absences which, by July 1999 before the dismissal of the Appellant, totalled 20 weeks. Dr Smeed found that exposure to fumes at work triggered the asthma, which did not worsen when the Appellant was at home. Dr Smeed concluded in May 1999 that "the only safe work for the [Appellant] on site would need to be totally out of the foundry, that is, in the offices or yard work." It is not clear to us where the despatch work fell within that recommendation. As recorded by the Employment Tribunal in paragraph 10 of their Decision, Dr Smeed drew attention, at that time, to the fact that "His asthma had worsened again and was worse whilst he was at work. Dr Smeed noted that, despite being in Despatch, the [Appellant] spent a lot of time driving forklift trucks into the Core Shop where he was exposed to the fumes. The Doctor suggested … [that] the [Appellant] should be excluded from those areas where he was exposed to the fumes."[8]It is not clear from the record of the evidence, but the inference is there, that Dr Smeed, in confining his recommendation to work in the offices or the yard, was assuming that the work upon which the Appellant was engaged in Despatch had to include time driving forklift trucks into the Core Shop. That this was a situation brought about for management reasons by the Respondents themselves, in the face of the recommendation they already had from Dr Smeed that the Appellant should not go near the Core Shop, does not on the basis of the findings set out in the Tribunal's Decision appear to have been considered by Dr Smeed, or indeed by the Respondents. The Employment Tribunal when evaluating the reasonableness of the Respondents' response when treating the Appellant's asthma as the reason for his dismissal stated, "The Respondents were of the view that wherever he worked in the factory then he was at risk from the fumes. They had reached that conclusion as a result of the medical evidence available to them…we have come to the conclusion that the Respondents could not have been expected to conclude that he would always be safe working in despatch". However we are uncertain that there was such medical evidence, on the findings of the Employment Tribunal, before the Respondents. Further there is no finding by the Employment Tribunal as to whether the Respondents responded to the advice from Dr Smeed in May.[9]These reports appeared during the period from 20 April to 18 June when the Appellant was absent from work. He had returned to work in June with the hope that readings of his breathing could be taken, but within a week of returning to work he became ill again and by July 1999 Dr Smeed, according to the Employment Tribunal, "confirmed that the [Appellant's] asthma was worsening each day with work but not worsening when at home." On 20 July 1999 the Appellant was asked to attend a meeting on 27 July. The Employment Tribunal found that at the meeting the Appellant was dismissed, there being no vacancies in either the offices or the yard. It appears that dismissal took place during a period of sickness absence. He had been ill whilst working near the Core Shop to the extent that he could not work. However, he had been found by Dr Smeed to be coping well with his health not being "aggravated" while he was working in the Despatch Department.[10]The Employment Tribunal considered medical evidence of the Respondents. In February 2000 Dr Farrand reported that "his obstructive airways disease is of a mild degree only, so long as he is not re-exposed to the chemical felt to be responsible for its inception." Dr Farrand expressed the view that the Appellant was not disabled within the meaning of the Disability Discrimination Act 1995 , a conclusion which is outside the area of his expertise for that is a matter for the court as was pointed out in Vicary v British Telecommunications plc [1999] IRLR 680 and Abadeh v British Telecommunications plc [2001] IRLR 23 . Dr Farrand went on to report at that time; "On the basis of his history and on my findings at examination, I am of the opinion that [the Appellant] is suffering from an obstructive airways disease that may have developed as a result of his exposure to isocyanate fumes during the course of his employment with VAW Motorcast Limited. …There would, thus, appear to be a strong probability that [the Appellant's] exposure to isocyanate fume was the progenitor of the obstructive airways disease that he then developed. … Unfortunately, some individuals develop a sensitivity to this chemical at levels considerably less than the legislative control limits. [The Appellant] would appear to be one such individual… In essence, this means that a concentration of the chemical to which other, unaffected, employees will remain unresponsive can, in a sensitised individual, lead to an acute asthmatic response of a potentially life-threatening nature. Once such a sensitivity has developed, repeated exposure can result in the induction of a severe episode of bronchospasm (airway obstruction) at considerably lower doses than that which caused the initial sensitivity and attacks of asthma are likely to become increasingly severe. Further, exposure to cold air and tobacco smoke can trigger an asthmatic attack, this triggering remaining for a number of years after exposure to the causative chemical ceases."[11]Further the Employment Tribunal noted that the Appellant had been awarded a 20 per cent disability pension by the Department of Social Security. In addition the Employment Tribunal recorded that, presumably relating to the time at which the hearing took place, "his GP describes him as having serious airway problems …"[12]Finally the Employment Tribunal listed examples of "the daily problems he encountered" which they appear to have elicited during the hearing before them. They found:
"The examples … related to not being able to run for say the length of the Tribunal corridor without becoming breathless, not being able to take the dog for a walk for longer than a mile without becoming breathless, not being able to do do-it-yourself activities like sawing wood off the bottom of a door and not being able to practice car maintenance. When asked specifically by the Chairman what his difficulties would be if he did not take his medication, the examples he gave were similar to the ones outlined above."
[13]The Employment Tribunal in paragraph 5 of their Decision then evaluated the extent to which they considered that the Appellant was a disabled person within the meaning of the Act. They found as follows:
"The Tribunal … concluded that they had not heard sufficient evidence of the [Appellant's] difficulties in respect of his day-to-day activities to be able to say that he had shown on the balance of probabilities that he was a disabled person within the meaning of the Act. Whilst he clearly does have a medical condition and that does impact on his daily life, the examples he was able to give us and the way in which he is impeded by his asthmatic complaint were not such as to be a substantial adverse effect preventing him from carrying out those activities which most people do every day. The [Appellant] can walk a mile, although with some difficulty and that is the only example which he gave us of those which most persons do regularly. We do not regard do-it-yourself activities and car maintenance as examples of normal day-to-day activities. They are activities which are normal and they are activities which are done by many people regularly but they are not done by most people or carried out by most people on a daily or frequent and fairly regular basis."
[14]We turn to the arguments on this appeal. It appears that in defining disability in relation to the effect on the ability to carry out everyday activities the Tribunal were assessing the position at the time of the hearing before them from the descriptions given to them by the Appellant of the difficulties he was experiencing. On the other hand it appears that the findings of the Tribunal demonstrated that over the period, covering at its greatest the years 1995 to 2000, there was considerable fluctuation in the symptoms of the asthma caused, so it appears on a balance of probabilities, by exposure to chemicals at work. Furthermore it also appears, from the report of Dr Farrand, that certainly by the time of that report, if not before, such symptoms were liable to exacerbation not only by further inhalation of the particular chemical to which the Appellant was exposed at work, but also by exposure to some everyday features such as smoke and cold.[15]It follows that the Tribunal found that immediately before his dismissal:a. The appellant had been absent from work due to sickness, namely his respiratory problem.b. This was probably caused by chemical fumes at work, but that once caused the symptoms were likely to be revived be lesser exposures.c. He had been considered for ill health retirement due to long term sickness but had not been a member of the pension scheme for long enough.d. Before his absence he suffered severe symptoms at work so as to prevent his working.e. He was permanently unfit to undertake work for the Respondents due to the risk of exposure to fumes.f. That his symptoms were liable to be precipitated by exposure to cold or smoke.g. That whilst away from work during his sickness absence his symptoms had abated, but were liable to revive if he returned to pre-absence work. However, the Tribunal also found that at the time of the hearing a. The appellant did have 'a medical condition' b. This condition does impact on his daily life c. Such impact, on the examples given by the appellant, did not amount to "a substantial adverse effect", but it appears that the employment tribunal found that the appellant's condition was "long term". d. The appellant was therefore not disabled within the terms of the Disability Discrimination Act.[16]Section 1 of the Disability Discrimination Act 1995 provides "…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…". The Employment Tribunal appear to have based their decision on whether the impairment had a 'substantial adverse effect'. They considered the condition of the appellant at the time of the hearing, and not at the time of dismissal, and on his symptoms when he was away from the environment of his employment. On the other hand it was the effect of that environment on his condition that gave rise to the act, namely dismissal, that was complained of as unlawful disability discrimination.[17]The appellant would contend that the approach of the Employment Tribunal was wrong. These two features, namely the time at which the tribunal should look and the environment they should look at when considering whether an applicant is to be treated as disabled within the meaning of the Act, fall for examination. Mr Graham helpfully has not taken the point as to whether this matter was specifically raised in the notice of appeal, and it does seem to come within the notice. First, should disability be assessed as at the time of the employer's act that is complained of as discriminatory, or should it be assessed at the time of the Tribunal hearing? Secondly, where at the time of the discriminatory act complained of, the employee is absent from work but still in employment, should consideration be given to the adverse effects on the capacity to do day-to-day activities whilst at work, or whilst absent, or both? What circumstances should be taken into account in cases where the severity of the impairment may vary depending on such circumstances?[18]This case illustrates that although at the material time an impairment may seem permanent and constant, the level of impairment may vary from time to time and may depend on the circumstances of the employee at particular times. Here it is clear that the effect of the impairment was worse during the times the employee was at his work than when he was away on sick leave, or indeed as he was by the time of the tribunal hearing.[19]Certainly, it appears that parliament did not contemplate only a disability that was constant and permanent in all circumstances. For instance the definition of 'long-term effects' in schedule 1 paragraph 2(1) includes the provision that "…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…" We return to the interpretation of that paragraph later, but refer to it now as indicating that Parliament did contemplate fluctuations in the effects of an impairment in cases of disability under the Act.[20]If a disability improves as soon as an applicant is away from the conditions of particular employment that has a particular adverse effect on the particular employee, is it the improved condition that falls for consideration by the tribunal? Where the impairment was caused by an exceptional reaction on the part of the Appellant to conditions in rather unusual employment, and where the adverse effects improve so long as the person is away from that employment, can it be said that in that narrow period of time and that narrow set of circumstances, namely that employment, there can be a disability within the Act?[21]We consider that(i) The fact that a condition may be caused at work is not in itself a reason for excluding it from consideration, for the Act in defining disability is not concerned with its cause and disability is not confined to any particular cause.(ii) There is no provision in the Act that confines its operation to common or usual situations, except when measuring the effect; the cause may be exceptional, the measure is the effect on the ability to carry out day-to-day tasks. Consideration of such effects are not bound, it seems to us, to take place excluding consideration of a person's ability to work at his job simply because the work situation is unusual.(iii) An employer may be confronted by an employee with an incapacity which gives rise to obligations on the employer under the Act, for instance to make reasonable adjustments. It seems to the majority that it would risk turning the Act on its head if the employer were able to avoid any such liability by dismissing the employee and thereby distancing the employee from the cause of the worst of the adverse effects and making it easier for the employee to carry out everyday tasks.[22]We turn first to consider the point in time to be looked at by the Employment Tribunal when evaluating disability. The time at which the existence of a disability is to be assessed has been considered by the Employment Appeal Tribunal, for instance in the cases of Goodwin v The Post Office (1999) IRLR 4 and Greenwood v British Airways plc [1999] IRLR 600 and the conclusion appears to be that the 'material' time at which to assess the disability is at the time of the alleged discriminatory act, in this case the dismissal. Indeed, in argument, Mr Graham, on behalf of the Respondents, really conceded this point and suggested that the tribunal should take a 'snapshot' of the condition of the employee's condition at the time of dismissal.[23]Much depends in our judgement on the starting point under the Act. Starting with Section 1, where the section provides that "a person has a disability…if he has a physical or mental impairment", it can be argued that the Employment Tribunal must look at the section and ask, 'does the applicant have a disability – does he have an impairment with the substantial and long-term effects?' If the Act is designed to provide an objective standard of disability to be assessed as at the time it is examined, the Employment Tribunal, as this one did, should, on a strict interpretation of Section 1, look at the picture presented to them as the means of determining whether a particular applicant, by coming within the definition in Section 1, qualifies to bring a claim under the Act.[24]However, we consider that the starting point is the cause of action, or the basis of proceedings, under the Act. Section 4(2) provides:
"It is unlawful for an employer to discriminate against a disabled person whom he employs - … (d) by dismissing him…"
Section 5 provides "…an employer discriminates against a disabled person if – (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified"[25]It seems to us that a claim against an employer for breach of duty under these sections must involve an examination of the actions of the employer towards the employee at the time. The person must be shown to be disabled. To make sense of this process must of necessity mean looking at the disabled person at the time of the actions complained of. Section 1 is simply a definition section that provides the meaning to attach to disability where it arises in the many parts of the Act. The fact that it uses the present tense does not alter the meaning of Sections 4 and 5, but rather it provides the meaning of the word to be applied in the context of those sections. What is being asked is whether 'an employer discriminates against a disabled person…'. To answer that question requires an examination of how the employer treated the employee as he was at that time. Was he then disabled as defined in Section 1? This is confirmed, on an examination of other provisions of the Act. For instance, in Section 6, which imposes on an employer an obligation to make reasonable adjustments, sub-section 6 provides "Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know- … (b)…that that person has a disability" That which requires examination is that which was, or should have been, in the mind of the employer at the time, and that must require an examination of whether there was a disability at that time. Indeed, in Section 1 itself, sub-section (4) provides:
"…the question whether a person had a disability at a particular time ("the relevant time") shall be determined, for the purposes of this section, as if the provisions of, or made under, this Act in force when the act complained of was done had been in force at the relevant time."
Here again the Act seems to require any examination of whether there was a disability, to involve examination of the employee's impairment at the time of the act complained of, in this case the dismissal.[26]We find that the Employment Tribunal asked themselves the wrong question, namely what presented itself to them at the time of the hearing, rather than 'what did the employer know or ought to have known of the employee's disability at the time of dismissal'. In this respect the majority find that the Employment Tribunal's approach was thereby wrong in law.[27]Having established the point in time at which to assess disability, we go on to consider the second question; what are the circumstances that should then be taken into consideration? It is argued that the Act requires consideration of 'day-to-day' activities and that a person is not disabled if he can carry out these tasks in all circumstances save the very special circumstances of this particular employment. The Appellant is a fork lift truck driver and can carry on that occupation and accomplish day-to-day tasks generally and it is said that it is simply that the chemical fumes in this particular employment provoke a reaction that means that the appellant cannot work in this particular place. In this way it is argued that the Act was designed to limit its protection to those persons who have an incapacity of more or less constant effect in ordinary day-to-day circumstances and not to a situation like this, where the effect may only be substantial whilst the Appellant is in a particular work environment because he has a most unusual susceptibility to a particular work process which subsides the moment that employee is away from work.[28]It is important to recognise the importance of distinguishing between 'disability' as understood in everyday speech, and 'disability' as precisely defined in the Act. We consider that it is not just the point of time of the alleged discriminatory act that must be looked at by the Tribunal but the nature and extent of the disability in terms of what it was that the alleged act of discrimination acted upon. In defining disability we consider that 'impairment' and its 'effect' are both part and parcel of the definition of 'disability' under the Act and fall to be considered as one. This is quite different from an 'impairment' and its 'effect', or 'symptoms' as applied to 'disability' as that word is normally understood in everyday speech. Clearly matters of degree and proportion will be relevant and the Employment Tribunal must balance the situation.(a) The first question is whether the Appellant suffered from an impairment. There was no issue before the Employment Tribunal but that the Appellant suffered, and continues to suffer, from a physical impairment variously termed an 'obstructive airways disease' and 'asthma'. The issue relates to the extent of the symptoms, or 'effects' at various times and in different conditions.(b) The Act does not draw a distinction depending on how a particular impairment was caused, be it congenital, infection, accident outside work, accident at work, physical surroundings in the outside world, particular circumstances at a particular place of work. We find no provision in the Act which excludes an impairment because it was caused in a particular or extraordinary way. The medical evidence we have quoted indicates first, that exposure of the Appellant to the chemical at work could cause an acute asthmatic response of a potentially life-threatening nature and that "Once such a sensitivity has developed, repeated exposure can result in the induction of a severe episode of airways obstruction at considerably lower doses…Exposure to cold air and tobacco smoke can trigger an asthmatic attack for a number of years after exposure to the chemical has ceased." We echo the implicit finding of the Employment Tribunal that the Appellant suffered from an impairment for the purposes of Section 1 of the Act.(c) 'Normal day-to-day activities' in Section 1 are included, it seems us, as a way of deciding whether the impairment is serious enough to qualify for protection under the Act. They are there as a yardstick, but only as a yardstick. It follows that in assessing whether a disability has a significant and long term effect on the ability to do everyday tasks, it is not appropriate to confine the evaluation to the extent to which the applicant is disabled only in a 'normal day-to-day' environment. In this case when the Appellant is away from work he can obviously accomplish most everyday tasks, on the findings of the Employment Tribunal. But the position of the "everyday tasks" test is as a measure of seriousness, it is not dictating the actual environment in the particular case in which such symptoms are to be judged. Accordingly if, whilst at work, an applicant's symptoms are such as to have a significant and long term effect on his ability to perform day-to-day tasks, such symptoms are not to be ignored simply because the work itself may be specialised and unusual, so long as the disability and its consequences can be measured in terms of the ability of an applicant to undertake day-to-day tasks. The Act is not restricted to the period when people who are only doing day-to-day activities; those activities are rather a 'barometer' or test of the degree of severity of the impairment.(d) In these circumstances, where an employee's ability to carry on day-to-day activities may vary depending on his general pattern of life at the time, in this case on whether or not he is at the work from which he was dismissed, there is a stage of enquiry that should precede the examination of ability to perform day-to-day activities. That stage is to identify the particular circumstances in and background against which the ability to perform those activities is to be judged. Was it whilst he was at work, in employment but on sick leave, or some time later after dismissal?(e) We consider that if dismissal, the act of discrimination complained of, is because of the effect of the employee's impairment on his capacity to work, it is that effect that falls to be examined. The employee is in employment. He is being considered for dismissal because of his impairment whilst at work. That is the disability for which he complains he was discriminated against. We conclude that in order to determine if that impairment amounts to a disability, the tribunal must consider the ability to perform normal day to day activities in the context of that actual impairment that was under consideration at the time, rather than what would otherwise be perhaps a rather theoretical effect of the impairment that was not considered by the employer at all. If the employer says "I am dismissing you because you are unfit to be at work", then if that act is alleged to be discrimination on the ground of disability, the tribunal must surely look at the context of such disability – that which makes him unfit for work.(f) Immediately before dismissal the Appellant was in what may be termed, for the purposes of the Act, fairly permanent employment with the risks of exposure to chemical which may spark off substantial adverse effects, but immediately after dismissal those circumstances no longer pertained. However the Act deals with discrimination on the ground of disability – the allegation is that the discrimination acts on the disability and therefore the disability that falls for consideration must be that which exists before the act of discrimination complained of, and not the other way around. Accordingly the Employment Tribunal should ask whether there was the substantial and long-term adverse effect whilst the employee was still in employment.(g) The dismissal is then an intervening cause that changes the effect of the impairment – it is the disability before the act complained of that must be looked at. We see no reason why, in examining the ability to perform day-to-day activities a tribunal should preclude itself from considering, amongst other evidence, such ability whilst the employee is actually at his work. This enquiry may lead to factual questions such as, "how long did this effect continue?" "Did it take a few days, or weeks to improve, or could you resume normal activity the minute you walked out of the factory gate?" "What day-to-day activities could you perform in the evenings after work, at the weekends, after 2 weeks break, whilst you were off sick?" It seems to us that it is only with that sort of picture that a tribunal can assess the extent of adverse effect. Whilst we agree that the 'snapshot' must be taken from the vantage point of the employer when he decides to dismiss, we consider that the narrow picture at that moment may be too restrictive. It is the general condition, the condition as it manifested itself in the circumstances which the employer considered in acting as he did that must be looked at.(h) Two matters remain. First, the wording of Schedule 1, paragraph 2 in defining long-term effects appears in sub-paragraph 2 to indicate that, generally, when considering 'long-term', those words also qualify 'substantial' so that what is required to qualify under the act is that 'substantial' and 'long-term' should go hand in hand – the substantial effects must also be long-term. Again, of course, that would fall to be judged in the light of the circumstances pertaining at the time before the discrimination complained of, here dismissal, subject to the qualification that the adverse effect is "…to be treated as continuing to have that effect if that effect is likely to recur."(i) Secondly, in this case at the very moment before dismissal the Appellant was not at work but was away on sick leave. The adverse effects that the Employment Tribunal had to consider may have been different as between actually being at work or being away on sick leave. However, the majority considers that it would be wholly artificial to find that now that the Appellant was on sick leave his adverse effects were no longer substantial, and we consider that the whole pattern of working life for the Appellant at the time of dismissal fell for consideration, including, for instance, the week of employment shortly before dismissal when the Appellant struggled to return to work. The act of discrimination complained of was dismissal from work because of the effect of actually working so that is part of the environment that falls to be assessed.[29]The essential question in this case fell, it seems to us, to be answered by looking at the disability that was the alleged cause of the alleged discriminatory act from the vantage point of the time of dismissal and taking into account, in a broad way, the symptoms and consequences of the disability as they appeared then. The fact that the employee may not be actually suffering from them at the moment of dismissal is then of marginal significance where the disability which gives rise to the inability to work must, by its very nature, embrace the exacerbated symptoms that are prevalent whilst the employee is at work and which themselves prevent him from that work.[30]We have considered the practical effect of our finding. When an employer is considering dismissal if he were to say; "this employee is in permanent employment at the moment with an impairment that has a substantial long term effect, but if he is dismissed, his condition will improve, and his impairment will then change so that he no longer has that substantial long term effect, I can avoid my obligations under the Act by dismissing him," the Act would be meaningless in this context. Alternatively the employer may instead say "So long as he remains at work my employee has an impairment with a substantial and long-term effect on his ability to perform normal day-to-day activities. I must fulfil my obligations of seeking to make reasonable adjustments and I must not dismiss unless I am justified. If then I dismiss, his condition will improve, I will have done my duty under the Act and I will not have acted unlawfully. On the other hand, who knows, in the process of investigation I may indeed find somewhere he can work without exposure to fumes." That surely is just what the act is designed to foster. The majority find the wording of the Act consistent with its purpose.[31]We find that, in assessing whether the Appellant was disabled, the Employment Tribunal erred in asking "what do we find the symptoms to be at the moment of this hearing before us so as to evaluate the disability" rather than asking themselves "what were the symptoms and how serious were they at the time of the dismissal and in relation to the disability that was or is alleged to have been the basis of the act (here dismissal) complained of?" The Appellant told us that when he had the symptoms at work they made him feel very tired and to suffer flu-like symptoms. That appears to convey a very different picture from that which he painted as to his symptoms at the time of the hearing before the Employment Tribunal, not surprisingly in the light of the evidence before the Employment Tribunal about the nature and cause of the symptoms. In considering the facts and forming their own assessment of whether the disability is serious enough in its symptoms to constitute a disability under the Act, we find that the Employment Tribunal must look at that which the alleged discriminator was dealing with. That may be slightly broader than considering simply what the alleged discriminator had in his conscious mind, for a Respondent will not be heard to be able to close his or her eyes to the obvious. But subject to that type of issue it is the disability that gave rise to the alleged discrimination at the time of the alleged discrimination that must be looked at. We find that the Tribunal then failed to assess the matter on the basis of the ability of the Appellant to carry out normal day-to-day activities during the employment from which the Respondents were considering dismissing him, rather than as he was after the act of discrimination complained of. There are, of course, other factors. If, for instance, the serious symptoms are only likely to recur say once a year, even if the employee were to return to work, then clearly that may have little impact and may give rise to a finding that there is no disability. On the other hand, if the symptoms are liable to recur with cold or smoke, as here, and where they prevent work at the relevant time because they give rise to symptoms that can be judged in terms of significant impairment, then clearly the answer may be different. A Tribunal must, it seems to us, identify the point in time at which the assessment is to take place, the relevant period for them to take into account and the circumstances of the particular applicant during such relevant period. We consider that this follows from the wording of the Act[32]The evaluation as to whether or not there is a relevant disability in a particular case is then clearly an issue of fact for the Tribunal to determine. So long as the Employment Tribunal adopts the correct approach the factors to take into account must, in the end, be a matter for the exercise of the Tribunal's discretion. Mr Graham has submitted that the assessment of disability in this case was a matter for the discretion of the Employment Tribunal on the facts as found by them and that no error of law is disclosed. Mr Graham referred us to the case of Piglowska v Piglowski [1999] 1 WLR 1360 but it seems to us that that is decision of the House of Lords which deals with the approach of an appellant body when confronted with the argument that the court of first instance was plainly wrong in the exercise of a judicial discretion. It seems to us that the exercise of a discretion, involving matters of judgment, is somewhat different from the issues we have to deal with in this case. We were also referred to the case of Hampson v Department of Education and Science [1988] IRLR 87. However, that decision, it seems to us, in finding that, "it is for those who seek to suggest that a Tribunal's decision is wrong to show the material upon which that submission is based and, " that where Employment Appeal Tribunal's attention is not directed to the evidence and the chairman's notes have been dispensed with, a finding of fact that a requirement applied was "justifiable" under the Race Relations Act could not be disturbed. However in the instant case we are concerned that, against the background of findings of fact made by the Employment Appeal Tribunal they really asked themselves the wrong question in relation to whether or not such facts amounted to a disability under the Act. They chose the point in time of the Tribunal hearing, rather than the date of the alleged discriminatory act, they formed their own assessment of the issue as to whether there was a significant and long-term effect, rather than looking at the situation as it appeared at the time of the dismissal and they failed to consider the symptoms that existed in the context of the disability that was being judged as rendering the Appellant incapable of work which formed the basis of the determination of whether there was a discrimination under section 1 of the Act.[33]This Tribunal is enormously indebted to Ms Stacey who not only appeared without fee for the Appellant at the preliminary hearing but, in the absence of any funding by the Disability Rights Commission for this full hearing, prepared a detailed and helpful skeleton argument, again without fee, for the purpose of this hearing. By way of further ground of appeal, criticism is made of the finding of the Employment Tribunal as to whether do-it-yourself activities count as normal day-to-day activities. Our attention has been drawn by Ms Stacey to - Vicary v British Telecommunications plc [1999] IRLR 680 at 682, paragraph 14 in support of the proposition that a failure to treat do-it-yourself activities and car maintenance as normal day-to-day activities is in itself a conclusion of fact which no reasonable Tribunal properly directing itself on the law could reach. We accept that argument. The Tribunal found that "We do not regard do it yourself activities and car maintenance as examples of normal day-to-day activities". We are unanimously of the view that, expressed in such general terms, that is an incorrect statement. We find that the Employment Tribunal erred in law in failing to ask themselves whether the particular do-it-yourself activities described by the Appellant amounted to day-to-day activities in the circumstances of this case.[34]By way of additional ground of appeal, the Employment Tribunal were criticised in the skeleton argument that we have received on behalf of the Appellant because, although in paragraph 2(15) they referred to the 20 per cent assessment from the Department of Social Services, they did not specifically refer to that when making their evaluation in paragraph 5. Reference was made to the case of Abedeh v British Telecommunications plc [2001] IRLR 23, where again the Tribunal had referred to a 20 per cent assessment but had not made clear the way in which it was taken into account. However in that case there was an issue as to its relevance which the Tribunal did not adjudicate upon so as to make it impossible to assess whether and to what extent it was taken into account. In the case before us however we are satisfied that in the section 2 of their Decision the Employment Tribunal set out the relevant facts as they found them to be, including the 20 per cent assessment, so that although they did not specifically made reference to it in paragraph 5 of their Decision we have no reason to believe that they were not taken into account such a finding. The facts to be taken into account are a matter for the judgment of the Tribunal and it is not a requirement that a decision of the Employment Tribunal should set out not only the findings of fact but then each and every fact that is taken into account and the way it is taken into account when the decision is reached and we find there was no error of law in respect of that assessment. An assessment of this kind is, it seems to us, in effect an opinion by another outside body as to the percentage of a disability. Of course the Tribunal itself is having to evaluate that very thing and although such opinion is no doubt useful and of assistance it is not a pre-determinant of the conclusion.[35]On the facts as discernible from the findings of the Employment Tribunal it is not possible for us to form a judgment, one way or the other, that the Tribunal would inevitably have come to the conclusion that there was or was not a disability and accordingly we allow the appeal, set aside the finding that there was no disability under the Act, and set aside the withdrawal of the remaining aspects of the complaint by the Appellant.[36]We turn to the finding of unfair dismissal. Two factors stand out from the findings of the Employment Tribunal, in our view. The first is that, knowing of the recommendation from their own doctor that the Appellant should not work in proximity to the Core Shop, and that the Despatch Department was recommended, and knowing the absence-free period that followed the transfer to the Despatch Department, the Respondents nonetheless changed the Appellant's work, so that he was to some extent back in contact with fumes from the Core Shop, for their own quite separate management purposes. It seems to us that that was a relevant consideration in assessing any argument that the Respondents "set the Appellant up to fail" when considering the reasonableness test in relation to unfair dismissal. Furthermore, it does not appear that, in considering the availability of alternative employment, the Employment Tribunal considered whether the Respondents had themselves considered the possibility of transferring the Appellant back to the Despatch Department. After all, there was no job vacancy in the Despatch Department when the other employee was transferred there and thereby bumping the Appellant back to the Core Shop. The Employment Tribunal found that the Respondents were entitled to rely on their own medical opinion but it is not clear from the findings of fact whether that medical opinion was really supportive of the proposition that the employee was unable to work. There is reference to the Stores but not to the Despatch Department in this context. Whilst some of the posts suggested were not acceptable because of the medical condition to what extent was the question of Despatch considered by the Respondents. In those circumstances we find that the Employment Tribunal erred in failing to ask the questions as to whether the Respondents were reasonable in not considering a return to the Despatch Department. Furthermore, in paragraph 6 of their Decision the Employment Tribunal say "At the conclusion of the first day, and having heard the Applicant's evidence, it had appeared that it was possible that, procedurally at least, this dismissal was flawed". However it is not clear what procedural flaws it was that the Tribunal were able to set aside when evaluating the evidence from the Respondents on the second day of the hearing. We allow the appeal from the finding that there was not an unfair dismissal.[37]The applications alleging disability discrimination and unfair dismissal are remitted for rehearing before a freshly constituted Tribunal.

Cited in 1 later judgment