COMMISSIONER OF POLICE OF THE METROPOLIS v MR G S VIRDI [2006] UKEAT 0338_06_1810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: UKEAT 0338_06_1810Case No Appeal No. UKEAT/0338/06/RNVenue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
COMMISSIONER OF POLICE OF THE METROPOLISAPPELLANTMR G S VIRDIRESPONDENT
Before
Mr Justice EliasDate 18 October 2006
[1]APPEARANCES For the Appellants Mr Clive Sheldon (of Counsel) Instructed by: Commissioner of Police for the Metropolis Directorate of Legal Services New Scotland Yard Broadway LONDON SW1H 0BG For the Respondent Mr Mohinderpal Sethi (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road LONDON WC1X 8DH SUMMARY Was the Tribunal entitled to find that the claimant was disabled within the meaning of the Disability Discrimination Act 1996 ? In particular, did the Tribunal err in its approach to coping strategies? The EAT held that the Tribunal did misunderstand the significance of coping strategies. Since that error may have affected the Tribunal's conclusion that the claimant was disabled, the appeal was upheld and the matter remitted to the Tribunal for reconsideration. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) This is an appeal from the decision of the chairman of an Employment Tribunal sitting alone (Miss A M Lewzey) at London Central, in which she held that the respondent was a disabled person for the purposes of the Disability Discrimination Act 1995 . The background[2]Sergeant Gurpal Virdi, a serving police officer, has complained, amongst other matters, of disability discrimination against the appellant Commissioner. He alleged that there was a failure to make proper adjustments so as to cater for his disability in connection with his taking certain examinations for promotion from sergeant to inspector, and that there was discrimination in relation to the handling of his grievance. The Commissioner disputed whether Sergeant Virdi was disabled at all.[3]The matter was considered by the Tribunal at a pre-hearing review. The Tribunal had evidence from an expert instructed by both parties jointly, namely Dr Cooling, and his report was available to the Tribunal.[4]In addition, Sergeant Virdi submitted witness statements and gave evidence before the Tribunal.[5]The evidence was that Sergeant Virdi started to experience problems with his left eye in 2000. After years of seeing various medical experts, he was finally seen by Dr Mohammad at Moorfields Eye Hospital, who diagnosed a left sub-foveal retinal pigment epithelial detachment of the eye. That diagnosis was confirmed by an honorary consultant ophthalmologist, Mr Webster, in December 2004.[6]The report of Mr Cooling set out the consequences of this condition in the following terms:
"He observes a central grey cloud in the left eye. The vision of the left eye is blurred all over. He is unable to read with the left eye alone and finds that when he wears his reading spectacles the grey clouded area is magnified. Lines appear crooked or distorted in the left eye in the area of central visual disturbance. On occasions he finds it necessary to close the left for close work. His reading span is limited to 30 minutes when he finds it necessary to rest for a few minutes. He complains of headaches, watering of the left eye and occasional throbbing. The left eye is also dry and irritable. He finds the right eye becomes tired or "strained" and the sight "goes out of focus" when reading or watching television for more than 30 minutes. He has limited his driving and now prefers his wife to drive. He is more reliant on public transport. He avoids driving in heavy rain or bad weather on the grounds of safety."
He also noted that percentage loss of central vision in the left eye was approximately 40% and that it met the definition for chronic visual impairment in the affected eye as defined by the World Health Organisation. The overall impairment of the visual system (the right eye being satisfactory) was assessed at 20%.[7]The chairman noted that in addition to these difficulties, Sergeant Virdi had told the Tribunal that he had significantly reduced his driving and did not like to drive at night or in heavy rain; he had physically to turn his head away from the normal line of vision in order to cross the road and in order to recognise people; he has to take care pouring hot liquids; that he had stopped cycling or doing DIY work in the summer prior to the hearing; and that although he could read newspapers, he had difficulties reading broadsheets. He also claimed in his witness statement that he had difficulty using a computer save when it was very light and when he was fresh; even then after a few minutes he had to turn and focus elsewhere for five or ten minutes before continuing. The law[8]The meaning of disability and disabled person is set out in s.1 of the Disability Discrimination Act 1995 . It is as follows:
"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"
. It is common ground that the claimant has a physical impediment which has a long term effect on his ability to carry out normal day to day activities. The only narrow issue between the parties is whether the Tribunal was entitled to describe the adverse effect as substantial.[9]Of some relevance in this case is the 1996 Guidance relating to matters to be taken into account in determining questions relating to the definition of disability. Paragraph A1 of Part II provides in terms that a substantial effect is one which is "more than "minor" or "trivial"".[10]There are also other material provisions of the Guidance, some of which were referred to by the chairman. Paragraph A2 which makes the point that if a person with an impairment takes longer to carry out normal day to day activities than would otherwise be the case, then that is a factor which is relevant in determining whether the impairment is substantial. Similarly, A3 recognises that the way in which an activity is carried out, and the extent to which it is different from the way one might expect it normally to be carried out, is also a potentially relevant factor when considering whether the effect is substantial.[11]Paragraph A4 notes that the cumulative result of a number of effects may result in a substantial adverse effect even if none of the effects treated individually would do so.[12]The Guidance also recognises that there are coping strategies which can prevent or mitigate the adverse effects. A7 and A8, which were not however, specifically identified by the Tribunal, are as follows:
"A7. Account should be taken of how far a person can reasonably be expected to modify behaviour to prevent or reduce the effects of an impairment on normal day-to-day activities. If a person can behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities the person would no longer meet the definition of disability. A8. In some cases people have such "coping" strategies which cease to work in certain circumstances (for example, where someone who stutters or has dyslexia is placed under stress). If it is possible that a person's ability to manage the effects of an impairment will break down so that effects will sometimes still occur, this possibility must be taken into account."
[13]There is a particular provision of the Code which is material to the question of eyesight, that is C19. It was expressly referred to by the Tribunal and is as follows:
"If a person's sight is corrected by spectacles or contact lenses, or could be corrected by them, what needs to be considered is the effect remaining while they are wearing such spectacles or lens in light of a level and light normally acceptable to most people for normal day to day activities."
. Certain examples are then given of what would or would not constitute substantial adverse effect, including inability to read ordinary newsprint and inability to recognise someone across a moderately sized room. It is common ground that the EAT decision in Vicary v British Telecom PLC [1999] IRLR 680, followed in Leonard v South Derbyshire Chamber of Commerce [2001] IRLR 19 (EAT) require a Tribunal to focus on what the claimant cannot do, or can only do with difficulty, rather than what he or she can do.[14]The Tribunal expressly referred to the fact that Sergeant Virdi has coping strategies. For example, he would (as we have indicated) move his head when crossing the road or trying to recognise someone, and he would need to rest for some time after reading for a period or when using a computer. His reading span was limited to about thirty minutes. I confess to having considerable doubts as to whether taking such rests can properly be considered a coping strategy as such. It is not a way in which he copes with the difficulty of reading so as to enable him to read; it simply defines the nature of the adverse impact. He cannot read for periods without a break. But the case was apparently argued below on the basis that taking breaks was a coping strategy.[15]In the course of giving judgment, the chairman said this:
" Leonard v South Derbyshire Chamber of Commerce says that I must not focus on coping strategies. I have to focus on what he cannot do. He does have 20% reduction in eyesight and an impairment of the whole of person of 19%."
Later she said that :
"Vicary says that a Tribunal must not make the mistake of taking the efforts that Mr Virdi makes to mitigate the effect as impacting on the severity of the disability."
[16]The chairman accepted that it was "an extremely marginal case that could go either way", she concluded in a relatively brief summary that it was appropriate to describe this disability as having a substantial adverse effect. In particular, she focused upon the claimant's problems with reading and using a computer. The grounds of appeal[17]Mr Sheldon submits that the respondent had adopted coping strategies such as turning the head, breaking off from working on computers for a time at certain intervals, and closing one eye when doing close work, and that the Guidance says in terms at A7 that they should be taken into account. He submits that it was therefore a fundamental error for the chairman to say that it must not focus on coping strategies: Leonard did not say that such strategies should be ignored, nor does Vicary say that mitigating factors should not be taken into account. This was a fundamental misreading of those decisions. On the contrary, the modification of the behaviour resulting from the adoption of coping strategies may alter the effects of the disability so that they are no longer substantial, as paragraph A7 of the Guidance shows.[18]Mr Sheldon accepts, as I understand it, that the chairman may in fact thereafter have analysed the case by reference to what the claimant could not do even having regard to the coping strategies. But he submits that the better view is that she did not, that on any view this is far from clear. He contends that given the unambiguous mis-directions, it would be unsafe and unfair to allow the decision to stand.[19]In my judgment there is no doubt at all that the Tribunal has fundamentally misrepresented the effect of those two decisions. Mr Sethi, for the claimant, sought to suggest that the chairman did not err, and that these passages could be read consistently with the law. In truth, however, that was simply by asserting either that she did not mean what she said, or that she intended to say something else. For example, he suggests that she was intending to say that coping strategies should be ignored but only insofar as it is unreasonable to expect a claimant to adopt them. I do not see, even on the most charitable of constructions, how one can read the words in that way. The directions she has given herself in relation to coping strategies and mitigation involves a clear error of law and contradict the guidance in A7.[20]However, Mr Sethi submits that it is plain that notwithstanding these errors, the Tribunal was well aware of the coping strategies and had obviously taken them into consideration in its assessment. The chairman did not in fact act on the directions in those two passages. The chairman repeatedly acknowledged (see paras 14 and 15 of the Decision) that coping strategies had been adopted. Even accepting that the reference by the Tribunal to ignoring coping strategies or mitigating measures was inaccurate and misleading, in fact what the chairman had done was to look at what Sergeant Virdi was unable to do, or could only do with difficulty, after having regard to the coping strategies.[21]He contends, for example, that the Tribunal appears to have been persuaded that the difficulties of having to take breaks when reading or working on a computer so as to be able to re-focus vision, should properly be described as significant in the sense of being more than merely trivial.[22]I see considerable force in Mr Sethi's submissions. It is clear that the coping strategies - if properly so described - here did enable the respondent to read and use computers, but only with the inconvenience of regular breaks. The chairman said that the claimant "could not read for an extended period". I confess that I would have read that as meaning that he could read for long periods but with breaks, and it seems to me that this construction is more consistent with treating the case as a marginal one. But Mr Sheldon submits that these words might mean that she felt she had to treat the claimant as being unable to read for an extended period even if he had breaks, on the basis that she had to ignore what had been treated as coping strategies. I have come to the conclusion that I cannot discount that possibility.[23]Accordingly, given the plain mis-directions, which immediately precede the analysis of the evidence, and given that I do not think that I can discount the possibility that the chairman did in fact act on the assumption that coping strategies should be ignored, this decision ought not to be allowed to stand. Mr Sheldon had no objection to the case going back to the same chairman, and I think this would be desirable. She can reconsider the matter in the light of the Guidance. Whether she wishes to hear further evidence as well as submissions will be a matter for her.[24]In the circumstances there is no need for me to deal with the alternative ground of appeal which was that the conclusion was perverse. Suffice it to say that absent the mis-directions, I would not have found for the respondent on this ground alone.[25]Accordingly, this appeal succeeds.