MR A M VYAS v LONDON BOROUGH OF CAMDEN [2002] UKEAT 1153_01_0711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1153_01_0711Case No Appeal No. EAT/1153/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A M VYASAPPELLANTLONDON BOROUGH OF CAMDENRESPONDENT
Before
His Honour Judge Peter Clark Dr D GrievesDate 7 November 2002
[1]APPEARANCES For the Appellant MR A M VYAS In Person For the Respondent MR A ROSS (Of Counsel) JUDGE PETER CLARK This is an appeal by Mr Vyas, the Applicant before an Employment Tribunal sitting at London Central (chaired by Mr H R L Purse) on 18 June 2001, against that Employment Tribunal's reserved decision, promulgated with Extended Reasons on 7 August 2001 following a day's deliberations in private on 18 July, that the Applicant was not a disabled person within the meaning of Section 1 of the Disability Discrimination Act 1995 (DDA).[2]The question under Section 1 was taken as a preliminary issue, the Applicant having alleged, in an Originating Application presented to the Employment Tribunal on 7 November 2000 that the Respondent, the London Borough of Camden, by whom he has been employed as an Estate Officer since 13 March 1978, had discriminated against him as a disabled person in failing to comply with their duty to make reasonable adjustments. Medical History[3]The Applicant was born on 13 July 1947. On 9 August 1999 he experienced chest pains when taking part in an office reorganisation during which he carried out heavy lifting. The following morning he attended the Accident and Emergency Department at his local hospital in Milton Keynes. Preliminary tests were carried out by Dr Gwilt, Consultant Cardiologist. On 21 April he was transferred to the John Radcliffe Hospital, Oxford where he was diagnosed as suffering from ischaemic and coronary heart disease. Following an angiogram he underwent surgery for an angioplasty with stent insertion to the right coronary artery. He returned to the care of Dr Gwilt who, in a report to his General Practitioner Dr Reddy, dated 5 May 1999, recorded that the Applicant had been contacted by telephone and said that he felt very well.[4]Following discharge from the John Radcliffe he was prescribed medication, including Aspirin (to thin the blood), Athenolol (betablocker, to slow the heart rate), Atorvastatin (to reduce the cholestoral level) and Indur (for angina).[5]The Applicant was seen by Dr Mulligan, Consultant Physician in the Department of Cardiology at the Milton Keynes Hospital on 24 June 1999. That doctor found that, since his angioplasty the Applicant had had no problems with angina, was able to exercise fully and his chest was clear. He was advised to reduce risk factors. He continued to take Aspirin, Atenolol and Atorvastatin.[6]Notwithstanding this optimistic assessment the Applicant remained on sick leave until September 2000.[7]On 10 April 2000 an Occupational Health Physician, Dr Major, reported to the Applicant's then General Practitioner, Dr Carter, following a consultation with the Applicant lasting 1¼ hours. In that report Dr Major recorded:
"Although he is cautious about the amount of exercise he takes there does not seem to be a significant limitation of walking distance. He does not usually climb stairs but believes he could manage two or three flights."
Later he said:
"Although there are unpredictable physical demands from his work overall I believe he has the necessary stamina and mobility to be able to accomplish most routine tasks. He also believes that the length of the day, including travel by coach, is within his physical capabilities. Indeed it might be argued that having had his angioplasty Mr Vyas is theoretically fitter than he was before treatment."
[8]As to the application of the DDA, Dr Major proffered his opinion that:
"There is a probability that Mr Vyas' condition is covered by the provisions of the DDA. Although his cardiac condition may presently be controlled by medication, if that treatment were withdrawn he would be likely to experience impairment as a result. This places upon his employers a duty to consider 'reasonable' adjustments."
[9]On 5 June 2000 Dr Lobo, a partner of Dr Carter, wrote to Dr Malleson, an Occupational Health Physician instructed by the Respondent, observing that the Applicant was then able to walk 1 mile and climb one flight of stairs without difficulty. When last seen on 26 May the Applicant had been well but had some chest pain brought on by anxiety and tension relating to his work. He was otherwise asymptomatic. Medication continued, including aspirin, Atenolol and Atorvastatin. He was fit for a return to a gradual return to work.[10]It seems that Dr Malleson experienced some difficulty in gaining access to the Applicant's medical records. Having obtained the various reports to which we have referred Dr Malleson, in a report dated 3 May 2001 for the purpose of these proceedings, expressed his view, on the medical information available, that he was unaware of any objective medical evidence that in any way limited the Applicant's day to day activities, or prevented him from resuming his normal duties. He reached that opinion without having seen the Applicant since 1999 for a very brief consultation.[11]Finally, Dr Major prepared a full report for the purposes of these proceedings. It is undated but appears to have been prepared on or shortly before 14 June 2001. He had not seen the Applicant for the purpose of that report since 20 March 2000.[12]In that report, at paragraph 7, he expressed the opinion that without his current medication the Applicant would suffer substantial impairment of day-to-day activities by reason of disabling chest pain and breathlessness. Without those drugs his exercise capacity would be further reduced, and without the anti-cholestoral statin there was a risk of narrowing of the arteries leading to serious angina or a myocardial infarct. The Legal Issues[13]Before the Employment Tribunal both parties were represented by Counsel. It was common ground that the test for determining whether or not a person is disabled under Section 1 DDA is that propounded by Morison P in Goodwin v The Patent Office [1999] IRLR 4 (EAT). Four questions arise, the onus of establishing affirmative answers to each lying on the Applicant. They are:(1) Does the Applicant have, in this case, a physical impairment?(2) Does that impairment affect the Applicant's ability to carry out normal day-to-day activities, in the present case relating to his mobility and/or ability to lift, carry or otherwise move everyday objects (Schedule 1 paragraph 4(1))?(3) If so, is the adverse effect substantial, that is more than minor or trivial?(4) If so, is the adverse effect long-term?[14]The issue between the parties revolved around the 2 nd and 3 rd of those questions only.[15]In resolving that issue the Employment Tribunal was required:(a) to find as fact the extent to which the Applicant's medical condition, ischaemic heart disease, affected his ability to carry out his normal day-to-day activities, as opposed to work activities(b) to find whether the adverse effect found is substantial, that is more than minor or trivial(c) in deciding those questions (i) the Employment Tribunal may consider relevant parts of the Guidance issued by the Secretary of State and (ii) to leave out of account measures taken to treat or correct the impairment. The deduced effect. That does not include treatment which has effected a permanent improvement, here the insertion of the stent designed to prevent narrowing of the right coronary artery. The Employment Tribunal Decision[16]The Employment Tribunal heard oral evidence from the Applicant, Dr Major and Dr Malleson. It directed the parties to submit written closing arguments. We have read those detailed submissions prepared by Counsel who appeared below.[17]Based on that evidence and those submissions the Employment Tribunal reached the following conclusions:(1) the Applicant could manage 2 or 3 flights of stairs without difficulty. They did not accept that he had a serious impairment of his ability to walk and rejected Dr Major's evidence that walking was limited to 50-100 yards without medication.(2) he cannot lift heavy household objects such as heavy furniture, heavy suitcases and heavy cooking pots.(3) the Applicant did not have problems with normal day-to-day activities when he was taking his medication. He had no difficulties with objects of moderate weight, as referred to in paragraph C(18) of the Guidance.(4) the withdrawal of treatment would not change the position.(5) in these circumstances the impairment did not have a substantial effect on his ability to carry out normal day-to-day activities.[18]He was not a disabled person for the purposes of the DDA. The Appeal[19]The Applicant's previous advisers entered a Notice of Appeal setting out 6 grounds. The appeal was permitted to proceed to this full hearing on all grounds by a division presided over by Mr Commission Howell QC at an Ex Parte Preliminary Hearing held on 26 March 2002. On that occasion Mr Vyas appeared in person. Although the majority of the grounds raised complaints of perversity, no order was made for the Chairman's Notes of Evidence or any part thereof.[20]Having considered those grounds with Mr Vyas today it is clear that there is really only one point in the appeal. It is whether the Employment Tribunal were entitled to conclude that the withdrawal of medication would not alter the Applicant's inability to carry out day-to-day activities. Mr Vyas submits that that finding was not open to them on the evidence before the Employment Tribunal.[21]In considering that submission we have been assisted by Mr Ross, who appeared below. We say at once that his presentation of the Respondent's case was exemplary; faced with an unrepresented Appellant he put the position fairly, consistent with his duty to the Court.[22]The relevant findings of the Employment Tribunal as to the deduced effect are set out at paragraph 22 of their reasons thus:
"On the evidence, the Tribunal did not consider that the withdrawal of treatment would change that position. In reaching that conclusion, the Tribunal had particular regard to the reports of Dr Major and Dr Lobo in April and June 2000 respectively. Dr Major said that the condition did not seem to be exertionally related and Dr Lobo said that apart from pain brought on by anxiety and tension, relating to his work, Mr Vyas was otherwise asymptomatic. The Tribunal heard no compelling evidence that withdrawal of the treatment would result in a significant deterioration in his condition."
[23]On the face of the written medical reports Dr Malleson, called by the Respondent, did not deal with the deduced effect. Dr Major did. We do not have the Chairman's Notes of Evidence. However Mr Ross has taken us to Counsel for the Applicant's written closing submissions below. At paragraph 25 she records:
"He (Dr Malleson) said that the removal of aspirin and Atorvastatin and Atenolol would have no effect at all on symptoms of angina. Such drugs would postpone a heart attack only."
[24]Thus, the Employment Tribunal was faced with a straight conflict of evidence between Drs Major and Malleson on the deduced effect. They preferred the opinion of Dr Malleson. The Applicant himself told us in the course of his submission that the Employment Tribunal probably rejected Dr Major's evidence about the deduced effect because he (Dr Major) had changed his evidence about the distance which the Applicant was able to walk. That may well be the explanation.[25]The upshot, it seems to us, is that the Employment Tribunal(a) considered the deduced effect and(b) reached a conclusion that was open to it on the evidence before it. That conclusion was supported by the evidence of Dr Malleson. Consequently the principal grounds, 1 and 2, of the appeal fail.[26]Dealing shortly with the remaining grounds of appeal. The third ground seeks to challenge a permissible finding of fact in relation to the effect of the withdrawal of the drug Indur. The 4 th and 5 th grounds, relating to stress-related chest pain, went not to the Applicant's inability to carry out day-to-day activities but were work related. The final ground of appeal, relating to the Applicant's case that he had a progressive condition, was not pursued before the Employment Tribunal although mentioned in passing in the form IT1. cf. Mensah v E Herts NHS Trust [1998] IRLR 531 .[27]It follows, in our judgment, that no error of law has been made out in the Employment Tribunal's approach. Consequently this appeal fails and is dismissed.