MR D H KIRTON v TETROSYL LIMITED [2002] UKEAT 247_01_2308

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 247_01_2308Case No Appeal No. EAT/247/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D H KIRTONAPPELLANTTETROSYL LIMITEDRESPONDENT
Before
His Honour Judge J R ReidDate 23 August 2002
[1]APPEARANCES For the Appellant MR DANIEL HOBBS (of Counsel) Messrs Jameson & Hill Solicitors 72-74 Fore Street Hertford SG14 1BY For the Respondent MISS JOANNE CONNOLLY (of Counsel) Instructed By: Mr S Mort Tetrosyl Ltd Walmersley Bury Lancashire BL9 6RE JUDGE J R REID QC : Mr Kirton appeals from a decision of the Employment Tribunal sitting in Manchester on 24 January 2001 that the Appellant is not a disabled person for the purposes of the Disability Discrimination Act 1995 . He asserts two separate grounds of appeal:(a) the decision of the Tribunal that was perverse and(b) the Tribunal has misdirected itself in law. The first ground attacks the Tribunal's finding that it was "not satisfied that by reason of the applicant's weakened sphincter muscles and his resultant incontinence that he is a disabled person within section 1(1) of the 1995 Act". The second ground relates to the rejection of Mr Kirton's alternative claim that in any event he was to be taken as having an impairment which had a substantial effect under the "progressive condition" provisions in paragraph 8(1) of Schedule 1 to the 1995 Act.[2]In late 1999 Mr Kirton was diagnosed as having a carcinoma of the prostate. In December 1999 he underwent a radical retropubic prostatectomy and pelvic node clearance. As a direct consequence of the operation he suffers from measure of urinary incontinence which is likely to be due to a sphincter deficiency. On the evidence such a consequence arises from somewhere between 10 and 40 per cent of such operations. Mr Kirton invited the Tribunal to find that the weakened sphincter muscle and his resultant incontinence is a physical impairment which has a substantial and long-term adverse affect on his ability to carry out normal day-to-day activities.[3]The Tribunal found that it did not. The Tribunal's finding at para 7 of its Extended Reasons was:
"We are satisfied upon the evidence before us that the applicant suffers from infrequent minor leakage from the bladder. Such leakages tend to occur if he sneezes or breaks wind and we do not find that the leakages can be regarded as frequent occurrences. Although certain activities, such as lifting, may increase the applicant's desire to urinate, this does not lead to incontinence on his part. Although we accept that the applicant wears one or two incontinence pads a day, these are a precautionary measure and they are of assistance to him in the event of a minor leakage. In reaching our decision we have had regard to the-guidance set out in the said paragraph C 17. However, even if we had not had regard to paragraph C 17 we would still have reached the same conclusion. Thus by reason of our findings we are not satisfied that by reason of the applicant's weakened sphincter muscle and his resultant incontinence that he is a disabled person within Section 1(1) of the 1995 Act."
[4]In reaching this decision the Tribunal had evidence in a report from Mr Carroll, a consultant urologist instructed on behalf of the Respondent, that "With respect of [Mr Kirton's] lower urinary tract function, he gets up a few times at night to urinate; on a bad night three times and less on other occasions. Before surgery he could sleep through the night. By day and night he uses incontinence pads. This is to soak up any weepage and seepage that occurs mainly insensibly; just occasionally he knows that a little jet of urine from the urethra. He does not flood, the urine does not run down his leg, his clothes are never damp or stained and the incontinence causes him no social embarrassment whatsoever. He regards the leakage as minimal and certainly nothing that interferes with his life. He does not have to use any powders or cream in the scrotal area because he does not suffer from skin rashes secondary to the small amount of urine that leaks over a 24-hour period." In the course of Mr Kirton's evidence he was asked about this statement and said that "what was stated there was correct".[5]Mr Carroll's view had been reinforced by a report from Mr Pautiledes who wrote on 11 February 2000 that he saw the applicant on that day and was "pleased that he was now more or less back to his normal self and has made a full recovery from the radical prostatectomy performed 8 weeks ago. His urinary control is more or less perfect".[6]Other evidence which was before the Tribunal was from Mr Flynn, a consultant urologist who gave evidence on behalf of Mr Kirton, a joint statement from Mr Carroll and Mr O'Flynn and from Mr Kirton himself. Mr O'Flynn stated in his report that "Mr Kirton continues to have some urinary incontinence. This occurs with a sudden rise in abdominal pressure such as coughing and sneezing. He needs to wear 1-2 pads a day."[7]Mr Kirton himself gave evidence that if he lifted heavy weights it brought on his condition so he avoided it. His employers arranged for the paint samples he had to carry to be packed in 1 litre containers and he could carry two or three without major discomfort, but it was not an option to carry two 5 litre containers as he had before. He referred to getting "an early warning, a trigger, I need to pass water fairly soon". His evidence went on "I wear incontinence pads in any event. Routinely I find out where the toilets are so I can make an excuse. If I drink tea or coffee I go to the toilet more often. I go 7/8 times a day. Before I went half this. I had meetings but being known in the trade I explained to them I may have to break off and they fully understand." In cross-examination he gave evidence he wore one or two incontinence pads a day. He was not asked about the number of leakages he suffered in the course of a day.[8]Because Mr Kirton's Notice of Appeal asserted that the decision was perverse, the Chairman of Employment Tribunal was invited to comment. He did so in a letter to the Employment Appeal Tribunal dated 26 June 2001. In the course of that letter he stated that the Tribunal did not find that because Mr Kirton wore or one or two pads a day he must experience one or two leakages a day. Instead the Tribunal found, on the balance of probabilities, that on occasions he wore one pad a day he suffered no leakages on such a day and it was only on the occasions when he wore two pads in one day that he did on fact suffer a leakage. He said that the Tribunal felt able to conclude from its own knowledge that people who wear incontinence pads tend to change them on a daily basis. This was against a background where counsel for Mr Kirton had been asked upon what basis the Tribunal should decide whether his frequency of micturiton was normal or abnormal and had suggested that since the panel was composed of men of a certain age they should take their own experience into account. As it happened two members of the panel suffered mild incontinence and the Tribunal felt able to conclude from its own experience that persons who wear incontinence pads tend to change them on a daily basis and would normally only wear two pads on one day if one had become soiled in the course of the day.[9]Counsel for Mr Kirton submitted that against this background the finding of fact that Mr Kirton's weakened sphincter muscle and his resultant incontinence was not a physical impairment which has a substantial and long-term adverse effect on his ability to carry out his normal day-to-day activities was perverse. The Tribunal should not have taken its own experience into account. It was said that if the Tribunal was going to make findings about the extent and number of incidents Mr Kirton suffered relying on his use of pads, it should have sought evidence about it. The number of pads used would vary depending on the extent of each person's incontinence and the person's personal hygiene. It was said that Mr Kirton was deprived of his right to a fair trial by the Tribunal's approach. The Tribunal ought not to have used its own experience without revealing it to the parties or (if the members did not wish to do that) without asking questions as to the precise number of leakages he suffered. Counsel for Mr Kirton accepted that with the benefit of hindsight she should have asked Mr Kirton about it but stated that it was by reason of an oversight on her part that further evidence was not adduced.[10]On behalf of Tetrosyl Ltd counsel submitted that the Tribunal was entitled to put the evidence it had in relation to continence pads in context, firstly, by referring to the evidence in the medical reports and secondly, by having regard to its own experience. This, it was submitted, is part of the ordinary process of interpreting and understanding evidence and is particularly pertinent where the evidence has not been elaborated upon by the party relying upon it. Counsel stressed this was particularly the case Mr Kirton's counsel expressly had invited the Tribunal to take into account their own knowledge and experience as 3 men of a certain age in order to assess whether that frequency of micturiton was normal or excessive. No objection was taken to this by Tetrosyl because it was accepted that this is the usual way in which evidence is appraised. If the Tribunal's experience in this regard was relevant so too was their experience in assessing whether the incontinence was frequent or infrequent by reference to the use of pads. It was submitted that the real thrust of this appeal was an attempt by Mr Kirton to use the appeal process to improve upon the way in which he gave his evidence and the way in which his case was conducted in the hope that the additional evidence would put a different complexion on the case.[11]In our judgment in the circumstances of this case it cannot be said that the Tribunal erred in law or acted in such a way as to deprive Mr Kirton of a fair trial by taking account of their own experience as one of the factors in reaching their conclusion that the limited incontinence revealed by the evidence did not have a substantial effect on Mr Kirton's ability to carry out normal day-to-day activities. The Tribunal like any "jury" making findings of fact draws on its own experience of life in the context of the evidence which is presented to it. It is clear that the Tribunal's experience was simply an element taken into account in evaluating the expert medical evidence and the factual evidence given by Mr Kirton.[12]The Tribunal clearly directed itself correctly on the law when it evaluated the evidence. The members had regard to the "Guidance on Matters to be Taken into account in Determining Questions Relating to the Definition of Disability" (in particular paragraph C17) and reminded themselves that a substantial effect had to be one that was more than minor or trivial. They correctly applied Vicary v British Telecommunications plc [1999] IRLR 680 and paid no attention to the joint statement of Mr Carroll and Mr O'Flynn that "We do not consider the incontinence to be substantial". They had before them evidence on which it was open to them properly to find that they were "not satisfied that by reason of the applicant's weakened sphincter muscles and his resultant incontinence that he is a disabled person within section 1(1) of the 1995 Act".[13]Mr Kirton's second ground of appeal was against the rejection of his submission that he was disabled by reason of paragraph 8(1)(b) of Schedule 1 of the Disability Discrimination Act 1995 . This provides:
"Where — (a) a person has a progressive condition (such as cancer…) (b) as a result of that condition, he has an impairment which has (or had) an effect on his ability to carry out normal day-to-day activities, but (c) that effect is not (or was not) a substantial adverse effect, he shall be taken to have an impairment which has such a substantial adverse effect if the condition is likely to result in his having such an impairment"
. The Tribunal found that the words "as a result of the condition" must mean as a direct result of the cancer, not as a result of the radical prostatectomy.[14]The issue, it was submitted on behalf of Mr Kirton, is simply whether the statute should be interpreted narrowly as did the Employment Tribunal or whether the statute should be interpreted more widely. It was common ground that but for the progressive condition (prostate cancer) he would not have had the operation which has resulted in an impairment having an effect on his ability to carry out normal day-to-day activities. It was also common ground that the 1995 Act does not cover asymptomatic untreated progressive conditions such as HIV and cancer. It was submitted that there was no authority as to whether Paragraph 8(1) of Schedule 1 of the 1995 Act should be interpreted to cover progressive conditions which have been treated where the treatment has resulted in an impairment having an effect of a person's ability to carry out normal day to day activities. Counsel for Mr Kirton submitted that the statute should be so construed.[15]On behalf of the Respondent counsel submitted that Mr Kirton has a progressive condition, namely prostate cancer, which itself is asymptomatic, though it was common ground his life expectancy has been shortened. He had had surgery for the cancer and the surgery had caused a weakening of his sphincter muscle. This, in turn, had led to infrequent and minor incontinence. The phrase in paragraph 8(l)(b) "as a result of the condition" was limited to impairments caused by the progressive condition itself. It did not encompass impairments caused by surgery to treat the cancer. The clear wording of the paragraph and the structure of the Schedule, it was submitted, supported the Tribunal's interpretation. The condition itself was at the heart of the paragraph: it must be the condition that causes the limited impairment and the condition which is likely to worsen and cause a more substantial impairment. It is the future effects of a presently manifest progressive condition which the paragraph is intended to embrace. If Parliament had meant to signal treatment and its consequences as the start of the protection under paragraph 8, it would have said so. Treatment is dealt with in elsewhere in the Act (Schedule 1 para 6). To construe paragraph 8 otherwise would produce anomalous results. A person who was once diagnosed with cancer, who was treated and in remission with a minor wound problem would be entitled to be treated as disabled themselves disabled whereas a person with a diagnosis of a terminal condition, untreatable but as yet asymptomatic would not.[16]In our judgment the Employment Tribunal was correct in its decision on this point. Paragraph 8 is triggered by a person with a progressive condition starting to have an impairment. A person who suffers an existing but not substantial impairment from a progressive condition falls within the ambit of paragraph 8. A person who suffers an existing substantial impairment resulting not from a progressive condition but from treatment for it does not need to rely on paragraph 8. A person who has an as yet asymptomatic progressive condition does not fall within the ambit of paragraph 8 and does not receive any other special protection from the Act, no matter how dire the prognosis. It would be anomalous if a person suffering some very minor impairment, but in remission as the result of apparently successful treatment for a cancer, had the protection of paragraph 8 whereas the presently asymptomatic person with a condition almost certain to prove fatal in the future treatment did not. In our view Mr Kirton's present impairment is as a result of the surgery he underwent and not as a result of the condition within the meaning of paragraph 8.[17]We were asked by the Tribunal to give any direction we considered appropriate as to whether the further hearing of Mr Kirton's remaining complaints (unfair dismissal, wrongful dismissal and unlawful deduction of wages) should be before the same or a different panel. We take the view that there is no reason why the previous panel should not conduct the further hearing but it is a matter for the Employment Tribunal to determine: for example we do not know how easy it would be to reconvene the same panel. There is no reason why the same panel is required: it is likely that the previous panel will have forgotten most of the detail of the case by now anyway and the matters in issue on the further hearing will require substantial new evidence. However we do think it would be undesirable to have the further hearing conducted before a panel which comprises a member or members from the previous panel and a member of members who are new to the case. The panel should, if practicable, be all old or all new members.