MR D PATERSON v THE COMMISSIONER OF POLICE OF THE METROPOLIS [2007] UKEAT 0635_06_2307

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2007] UKEAT 0635_06_2307

Case No Appeal No. UKEAT/0635/06

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR D PATERSONAPPELLANT

THE COMMISSIONER OF POLICE OF THE METROPOLISRESPONDENT

Before

Mr Justice Elias

Date 23 July 2007

[1]APPEARANCES For the Appellant MR JAMES LADDIE (of Counsel) Instructed by: Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road LONDON WC1X 8DH For the Respondent MS ALISON PADFIELD (of Counsel) Instructed by: Metropolitan Police Service Directorate of Legal Services Wellington House 67-73 Buckingham Gate LONDON SW1E 6BE SUMMARY PART TIME WORKERS A police officer was found by the Tribunal to be significantly disadvantaged compared with his peers when carrying out examinations for promotion. Nonetheless, the Tribunal held that he was not disabled within the meaning of the Disability Discrimination Act 1995 because that was not a normal day-to-day activity. In so far as he did claim to be suffer substantial adverse effects on his ability to carry out what the Tribunal accepted were day-to-day activities, the Tribunal was not satisfied that the effects were substantial. They were minor. The EAT upheld the appeal. The Tribunal had misdirected itself on the proper approach to the meaning of disability. It would wholly undermine the protection afforded by this legislation if the Tribunal were correct. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) This appeal raises a short point, namely whether the Tribunal erred in law in concluding that the appellant in this case, Mr Paterson, was not disabled within the meaning of the Disability Discrimination Act 1996 . The reason the Tribunal so concluded was that they found that although the appellant had dyslexia, it did not have a "substantial adverse effect on his ability to carry out normal day to day activities".

[2]Mr Paterson contends that in the light of the Tribunal's findings this was an impossible conclusion for them to reach.

[3]The context in which the issue has arisen is this. Mr Paterson is a police officer who discovered in 2004 that he suffers from dyslexia. He alleges that as a consequence he is disabled, and complains that he has been discriminated against for a reason relating to his disability and that his employers have failed to make reasonable adjustments, particularly in the processes for determining whether he might be promoted to superintendent. Some adjustments have been made in his favour, but he claims that they are insufficient. The finding of the Tribunal means, of course, that in law the employers were not obliged even to make the adjustments they did make. The Tribunal's decision

[4]The appellant became a police officer in 1983. He became a sergeant in 1989 and a uniformed inspector in 1999. At that point he was transferred from Epsom, where he had been working, to Vauxhall. He was made chief inspector on 26 April 1999, and at that point became a senior investigating officer at the Professional Standards Borough Support Central Area.

[5]In the course of his employment he has taken various examinations at different stages of his career. He has had various managerial functions to perform. In particular, he has been commended on occasions by his supporting officer for writing good and clear reports. He was described in 2001, when he sought promotion, as "an able communicator – this has resulted in the production of a number of complex and detailed reports which are successfully supported in both criminal and disciplinary proceedings ….He has consistently produced work of high quality. This has been achieved despite the tight deadlines and the demanding environment present in his current role."

[6]The Tribunal concluded that he would have had to deal with a vast amount of paperwork during his career of different levels of complexity.

[7]In 2004 he discovered that he was dyslexic. The Tribunal noted that he had achieved the rank of chief inspector without ever having been aware of that fact. They added this:

"We are very conscious that the tenor of the statutory guidance and the large number of legal authorities on the issue of disabled status stress that it is important for Tribunals to concentrate on what a potentially disabled person cannot do rather than what he can do. We would not wish it to be thought that by recording the above paragraphs in what we believe to be a logical chronological fashion we have lost sight of that very important legal principle. It is however quite clear that although in a vague and general kind of way throughout his entire life until the age of 42 the Claimant was personally conscious of having difficulty nevertheless we believe that in ordinary parlance he has demonstrated that he was able to achieve a very senior position in a very structured and hierarchical organisation with we believe a considerable emphasis on paperwork and the accuracy, promptness and clarity of the written word."

[8]The Tribunal accepted that the appellant had throughout his life had a degree of dyslexia and that it would continue. They said this:

"In a nutshell the issue we have to determine was the question of substantial adverse impact on day to day activities."

[9]They then referred to some expert evidence. There were two experts' reports, one from Dr Michael Biddulph, an educational psychologist, and the other from Professor McLoughlin, a consultant psychiatrist and an expert in dyslexia .

[10]Dr Biddulph noted that on certain tests the claimant did poorly, in particular he had "a significant weakness in phonological processing" , was below the level expected for someone of his age in the achievement reading test, and was accurate but slow in assimilating written information. He placed the appellant in the category of "mild dyslexia". In a subsequent letter he summarised the problems as being speed of reading, short term auditory working memory, speed of information processing, and organisation. He recommended that Mr Paterson be allowed an additional time of 25% at each stage of the selection process. That is what has been done.

[11]Professor McLoughlin was instructed by the appellant's solicitors about two years after Dr Biddulph had carried out his examination. He focused on the areas where Dr Biddulph had identified weaknesses. He identified a number of weaknesses, in particular in the area of silent reading and comprehension. He also thought that the appellant may have difficulty checking his own work because he did not readily identify proof reading errors. The Tribunal, however, found this to be inconsistent with the way in which the appellant had in fact been dealing with paperwork throughout his life as a police officer. Professor McLoughlin's view was that the dyslexia was more severe than Dr Biddulph had said. He also noted – and the Tribunal said that this was uncontroversial – that "even slight problems with memory and literacy can, however, have a greater impact when someone is working at an advanced level."

[12]The Tribunal preferred the evidence of Dr Biddulph to that of Professor McLoughlin. They noted that although the solicitors had prepared an extensive briefing letter for Professor McLoughlin with a number of specific questions, they had not all been answered. They concluded that:

"Insofar as there was perhaps a small difference of inconsistency between the two reports, we found that the report of Dr Biddulph was clearer and we found, based on more consistent and correct reasoning."

[13]Both doctors made a number of recommendations as to how the appellant could be assisted, both generally and in his aim to achieve promotion to the level of superintendent.

[14]The Tribunal's conclusions with respect to the reports were as follows, (paras 29-31):

"We find and believe that it is clear that Dr McLoughlin and to a certain extent Dr Biddulph have both to a certain extent coloured their overall conclusions about the Claimant by placing him within the context of a "professional person" and/or "working at an advance level"

. We have absolutely no doubt at all that the Claimant's degree of dyslexic difficulties are certainly disadvantageous to him in comparison with other colleagues competing for the very senior Superintendent positions for which he himself has been competing in the last two years. These are we direct ourselves very high powered and demanding roles with no doubt very difficult and challenging role playing and related questions, tests and assessments. After referring to certain passages in the report of Professor McCoughlin, they continued: However, we would again point out that Dr McLoughlin in those two summary paragraphs refers to his general conclusion which we believe has affected his general observation and we believe has also affected his general conclusions "many of my adult clients have worked successfully in complex occupations, but their difficulties become more evident when demands increase. This does not mean they have suddenly become dyslexic". We find that again what Dr McLoughlin is rightly commenting is that the Claimant may well have found and be finding that the degree of dyslexic difficulties which he has always had will be and have become more marked at his very senior position."

[15]Finally, the Tribunal turned to the question of day to day activities. They noted that the claimant had given what they had identified as " very limited and vague evidence " about the extent to which the day to day activities had been affected. No specific examples were given. They also thought that he could have had no difficulty with accounts.

[16]The Tribunal concluded that, having regard to his obvious achievements over the years, Mr Paterson was plainly able to carry out report writing and financial and budgetary duties. There was no impairment on these day to day activities. They accepted that he might have some limited ability in reading small labels on produce and matters of that kind when shopping but considered that this was no more than minor or trivial. Then, at para 35 they said this: "We find and direct ourselves that it is presumably open to a tribunal to reach a conclusion that a Claimant may be diagnosed to have a degree of dyslexia, but that that dyslexia does not as a matter of fact have more than a minor or trivial impact on his day to day activities. It is thus one of the conditions which we believe it is necessary for us in the Tribunal (the other obvious example being depressive illnesses) where it is necessary for us to carry out an assessment of issues of fact and degree. We find and direct ourselves that the correct "comparator" assessment is with the ordinary average norm of the population as a whole. We have, as we have already expressed, no doubt at all that the Claimant will continue to be at a definite disadvantage in the high pressure and we believe by no means day to day situation of a high pressure exam at a substantial disadvantage to his non dyslexic colleagues. That disadvantage we believe, however, is well capable of being compensated for within the Respondent's own procedures and proper good industrial practice by a large employer." ... emphasis added.)

[17]Their conclusion was that the degree of dyslexia was no more than minor. They added:

"We would not wish our conclusion in any way to be a green light for the Respondent to ignore what is a degree of dyslexia which plainly at a high level is something which in good industrial practice should be taken into account by the Respondent."

[18]It seems to us that the following is a fair representation of the decision. In so far as Mr Paterson was claiming that he had been substantially disadvantaged in day to day activities, there was no substantial disadvantage. Any adverse effects of his impairment were minor. There was a substantial disadvantage with respect to carrying out the promotion examination, but that was not a day to day activity. Furthermore, although Mr Paterson was disadvantaged when compared to his non-dyslexic colleagues, he was not disadvantaged with reference to the "ordinary average norm of the population as a whole." The law

[19]The Disability Discrimination Act 1995 first regulated discrimination in the field of employment. At that time there was no European legislation in the field. That has now changed. The Council Directive of 27 November 2000 ( 2000/78/EEC ) "Establishing a General Framework for Equal Treatment in relation to Employment and Occupation" (the " Framework Directive ) also requires measures to be taken to combat disability discrimination in employment and related fields. The UK gave effect to these provisions by the Disability Discrimination Act 1995 (Amendment Regulations) 2003 , which came into force on the 1 October 2004. The amended legislation must of course be interpreted so as to give effect to the Directive.

[20]Section 1 of the 1995 Act provides:

"Meaning of "disability" and "disabled person" (1) Subject to the provisions of Schedule 1, 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. (2) In this Act "disabled person" means a person who has a disability."

[21]Section 3 provides that the Secretary of State may provide guidance about matters to be taken into account when analysing the questions raised by s1. Such guidance has been issued and is entitled "Guidance on matters to be taken into account in determining questions relating to the definition of disability." A tribunal has to take the guidance into account where it appears to be relevant: s3(3).

[22]A number of features should be noted about this definition of a disabled person within the meaning of s1. First, the approach is a functional one; there has to be a substantial effect on a person's functional abilities.

[23]Second, it is not all physical or mental impairments which fall within the scope of the section. Para 4(1) of Schedule 1 to the Act provides:

"An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following – (a) mobility; (b) manual dexterity; (c) physical co-ordination; (d) continence; (e) ability to lift, carry or otherwise move everyday objects; (f) speech, hearing or eyesight; (g) memory or ability to concentrate, learn or understand; or (h) perception of the risk of physical danger."

That is an exclusive definition; the impairment must affect one of the matters identified. It is common ground that the effect of the impairment of dyslexia falls under para (g).

[24]Third, the impairment must have an effect on the ability to carry out normal day to day activities. Some assistance as to the meaning of normal day to day activities has been provided by part C of the Guidance. The following paragraphs in particular are of assistance:

"C Normal day-to-day activities Meaning of "normal day-to-day activities"

C1. The Act states that an impairment must have a long-term substantial adverse effect on normal day-to-day activities (S1). C2. The term "normal day-to-day activities" is not intended to include activities which are normal only for a particular person or group of people. Therefore in deciding whether an activity is a "normal day-to-day activity" account should be taken of how far it is normal for most people and carried out by most people on a daily or frequent and fairly regular basis. C3. The term "normal day-to-day activities" does not, for example, include work of any particular form, because no particular form of work is "normal" for most people. In any individual case, the activities carried out might be highly specialised. The same is true of playing a particular game, taking part in a particular hobby, playing a musical instrument, playing sport, or performing a highly skilled task. Impairments which affect only such an activity and have no effect on "normal day-to-day activities" are not covered. The examples included in this section give an indication of what are to be taken as normal day-to-day activities."

[25]We would also observe that in practice if the impairment is of a kind described in para 4 of Schedule 1, then it is almost inevitable that it will have an adverse effect on normal day-to -day activities. The point was lucidly put by Mr Recorder Langstaff QC, as he was, in Ekpe v Metropolitan Police Commissioner

[2001] ICR 1084

, para 30:

"The question whether the impact of the impairment is upon normal day-to-day activities is, of course, judged by asking whether or not any of the abilities, capacities, or capabilities (whichever expression is adopted) referred to in Paragraph 4(1) of the Schedule to the 1995 Act has been affected. If it is, then it must be almost inevitable that there will be some adverse effect upon normal day-to-day activities. An impairment of manual dexterity – to take that as an example – is almost bound to affect a myriad of individual activities, not all of which could satisfactorily be listed even by the most able and eloquent of applicants. Assuming for the moment, without deciding (because the contrary interpretation is not necessary for the resolution of this case), that an impairment in any of the capacities listed at Paragraph 4(1) is not in itself determinative of the question of impact on normal day-to-day activities, but that the impairment must be shown to have some such effect, it nonetheless seems to us that it will only be in the most exceptional case that any such impairment will not do so. If there were some impairment that affected the concert pianist only in his ability to manipulate the keys of his piano, it would affect his manual dexterity but would not affect normal day-to-day activities within the meaning of the Act: but it is difficult to contemplate what the nature of an impairment might be that had such a selective effect. In most normal cases it is likely that the answer to the question "

Has a Paragraph 4(1) ability been affected?" will also answer the question whether there has been an impact on normal day-to-day activities."

[26]Fourth, the adverse effect must be substantial. Again, some assistance is provided by the Guidance: Meaning of "substantial" adverse effect A1. The requirement that an adverse effect be substantial reflects the general understanding of "disability" as a limitation going beyond the normal differences in ability which may exist among people. A "substantial" effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects. A "substantial" effect is one which is more than "minor" or "trivial". . The time taken to carry out an activity A2. The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time that might be expected if the person did not have the impairment. . The way in which an activity is carried out A3. Another factor to be considered when assessing whether the effect of an impairment is substantial is the way in which a person with that impairment carries out a normal day-to-day activity. The comparison should be with the way the person might be expected to carry out the activity if he or she did not have the impairment

[27]In our judgment A1 is intending to say no more than that in the population at large there will be differences in such things as manual dexterity, ability to lift objects or to concentrate. In order to be substantial the effect must fall outwith the normal range of effects that one might expect from a cross section of the population. However, when assessing the effect, the comparison is not with the population at large. As A2 and A3 make clear, what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired.

[28]There are also certain provisions which deal with coping strategies. In some cases they will prevent the impairment having adverse effects, but only where they can be relied on in all circumstances:

". Effects of behaviour 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 when assessing the effects of the impairment."

[29]Fifth, the effects must be long-term. That is defined in Schedule 1 para 2. It is not disputed that any effects here are long-term. The significance of medical evidence.

[30]Although there will frequently be medical evidence from experts to assist a tribunal on the question whether someone is disabled, that is a matter for the Tribunal and not the expert to determine. The position was expressed as follows by Morison P in Vicary v British Telecommunications plc

[1999] IRLR 680

at para 16:

"…The fact that the medical adviser had been told on some disability discrimination course or seminar that something was or was not a normal day-to-day activity is not of relevance to the tribunal's determination. It is not for a doctor to express an opinion as to what is a normal day-to-day activity. That is a matter for them to consider using their basic common sense. Equally, it was not for the expert to tell the tribunal whether the impairments which had been found proved were or were not substantial. Again that was a matter for the employment tribunal to arrive at its own assessment. What, of course, a medical expert was entitled to do was to put forward her own observations of the applicant carrying out day-to-day activities and to comment on the case or otherwise with which she was performing those functions. She obviously also was entitled to give any prognosis that might be relevant and to give an opinion as to the position about the effect of medication."

[31]Mr Laddie submitted that a medical expert would also be entitled in a case like this, where some objective assessment is possible, to give the scores and place them in context. That is plainly correct and is part of the medical analysis. However, that is not the same as determining whether the effects are substantial, although sometimes the assessment will effectively dictate the answer to that question. The grounds of appeal.

[32]The appellant has identified five separate grounds of appeal. However, stripped of the detail, lying at the heart of the appeal is a simple assertion. It is submitted that once the Tribunal has found - as it has in terms - that because of his disability, the appellant would be at a definite disadvantage in comparison with his work colleagues in performing the assessments which are a prerequisite of being promoted, then the only possible conclusion was that he was disabled within the meaning of the legislation. Once it was accepted that the disability affected Mr Paterson's ability to progress in his profession, the only reasonable inference was that it had a substantial effect on his day to day activities. Any other conclusion would mean that because of the effects of his dyslexia, he would in practice face a glass ceiling; he would not be able to compete adequately in the promotion stakes beyond a certain level.

[33]Mr Laddie submits that it is simply not adequate for the Tribunal to say that the effect of the dyslexia should be taken into account as part of good industrial practice. The purpose of the legislation is to confer rights on the disabled so that, for example, reasonable adjustments should be made to eliminate or mitigate the adverse effects of their disability. It is not satisfactory simply to rely on the goodwill of the employer to provide those adjustments. Moreover, as in this case, there may well be disputes as to whether a particular adjustment is reasonable or not. Yet if the employee is not even classified as disabled, there is no way in which he can challenge that conclusion in law.

[34]Moreover, he says that if the Tribunal were right, it would have a devastating effect on the operation of the legislation. One of its objectives is to prevent discrimination with respect to the opportunities which the employer affords a disabled person for promotion. It would frustrate that objective if an employer could successfully contend that a person subject to a disadvantage and who required an adjustment to mitigate that disadvantage would not be protected because he did not fall within the statutory definition of a disabled person.

[35]Mr Laddie recognises that the Act is complex and technical, but submits that the conclusion of the Tribunal is so bizarre that it must betray an error of law. The Tribunal has lost the wood for the trees. Someone who, as the employer has conceded in the light of Dr Biddulph's report, needs 25% additional time for completion of the promotion assessment in order to compete for promotion must be disabled within the meaning of s1 of the Act. To conclude otherwise fundamentally undermines the Act's intended field of protection.

[36]Ms Padfield, counsel for the employers, contends that the Tribunal was not in error and that the appellant's argument is based on a misconception of the purpose of the legislation. The issue is not how the appellant would have performed but for his dyslexia; that is the wrong comparison. Rather it is whether he is disadvantaged when compared with members of the population at large.

[37]That in turn is assessed by focusing on whether his impairment has a substantial adverse effect on his ability to carry out normal day to day activities. If it does not, as the Tribunal rightly found in this case, then it matters not whether his disability has caused him to suffer a disadvantage which he would not otherwise have. An employer may choose to make allowances for that disadvantage, but there is nothing in the Act requiring them to do so. As the Tribunal noted, it is a matter of good practice. Ms Padfield accepts that this will indeed limit the opportunities for promotion which a disabled employee will have but submits that this is the social policy of the legislation.

[38]In our judgment the appellant is correct. Where it is not disputed that the employee is suffering a substantial disadvantage because of the effects of his or her disability in the procedures adopted for deciding between candidates for promotion, the only proper inference is that those effects must involve a more than trivial effect on his ability to undertake normal day to day activities. It would fundamentally undermine the protection which the Act is designed to provide were it otherwise.

[39]Moreover, Ms Padfield's approach misconstrues the task which Tribunals must carry out. As we have said, it is not to compare the performance of the employee with the average person in the population, which was the comparison the Tribunal seems to have made. Rather, it is the comparison between what the individual can do and would be able to do without the impairment. That is a simple summary of our conclusion which we expand in the context of considering the detailed grounds of appeal. Improper considerations.

[40]The first ground is that the Tribunal erred in law in placing emphasis on the appellant's ability to carry out normal day to day activities in the period prior to the date of the alleged discrimination. It was an improper consideration and unfairly affected their assessment of his activities. The relevant date for determining whether discrimination exists is the date of the alleged discrimination: see Cruickshank v VAW Motorcast Ltd

[2002] ICR 729

[41]The second ground is related, as Mr Laddie accepted. It is submitted that there was evidence from the appellant that he only managed to perform certain tasks satisfactorily by adopting coping strategies but that as a result he would re-read texts and take longer to perform reading and associated tasks than would his colleagues. He submitted that the fact that Mr Paterson had been able to cope during his career did not show that he was not substantially disadvantaged. Indeed, the only proper analysis of the expert evidence was that he was disadvantaged even in carrying out the every day activity of reading and comprehension.

[42]Ms Padfield contends that these two grounds are misconceived. Whilst in some cases it may be inappropriate to consider how tasks were being performed prior to the date of discrimination, this is because there might have been no disability at the earlier date. Here, however, there was no change in the nature or severity of the symptoms. It was common ground that the appellant had suffered from dyslexia all his life. It was not suggested that the symptoms had deteriorated. In these circumstances the Tribunal was plainly justified in considering the evidence of how the appellant had managed in the course of his police career.

[43]In so far as the work activity included normal day to day activities, the Tribunal was entitled to have regard to it when assessing the appellant's evidence. That was the conclusion of the Inner House of the Court of Session in Law Hospital NHS Trust v Rush

[2001] IRLR 611

, and the EAT should follow it. The Tribunal was therefore entitled to conclude that since the appellant could apparently carry out such tasks as bookkeeping and report writing in the course of his work, this was evidence supporting its conclusion that he could deal satisfactorily with normal day to day activities.

[44]As to the coping strategies, Ms Padfield says that the Tribunal was referred to the guidance relating to this, and in any event it should not be assumed that they did not have regard to them merely because they did not expressly refer to them. In any event, since this ground relies upon evidence allegedly adduced before the Tribunal, it was incumbent on the appellant to establish what evidence had been given, either by agreement or, absent agreement, chairman's notes. Since that has not been done, this ground cannot be pursued.

[45]We accept Ms Padfield's submissions on the first point. The date of the discrimination was immaterial in this case where the disability relied upon was a form of dyslexia from which the appellant had always suffered. In those circumstances it was obviously appropriate for the Tribunal, when assessing the effect on normal day to day activities, to have regard to the appellant's ability to cope in his job.

[46]That was of potential evidential significance, as the Inner House of the Court of Session recognised in the Law Hospital case. We also agree that even if the Tribunal has misunderstood or failed to appreciate the significance of such evidence as the appellant gave about coping strategies, we are in no position to assess that without the relevant evidence before us. In principle, as para A7 of the Guidance makes clear, a coping strategy may in an appropriate case eliminate the adverse effects.

[47]Mr Laddie advanced a slightly different point in the course of argument. He submitted that it was plain from the evidence and confirmed in the experts' reports that in any event the coping strategies themselves involved allowing more time than would be taken by a non-disabled person for reading and comprehension. This taken on its own ought to have led the Tribunal to conclude that there was a substantial adverse effect but they failed to have regard to that factor. We agree that this was potentially an important matter which the Tribunal ought to have considered. However, in fairness to the Tribunal, it was not argued with any force below that the act of comprehension was itself a day-to-day activity, although we have no doubt that it is. Inadequate treatment of experts' reports.

[48]The third ground is that the Tribunal erred in improperly discounting the report of Professor McLoughlin or at least, if it were to fail to follow it, it was incumbent on them to say why. Reliance was placed on a decision to that effect in R (H) v Ashworth Hospital Authority

[2003] 1 WLR 127

. Merely stating that it was because Professor McLoughlin had failed to ask all the questions posed to him, and that his reasoning was inadequate, was an insufficient explanation.

[49]Mr Laddie further submits that for the Tribunal to describe the dyslexia as "minor" was inapposite, even given the Tribunal's preference for Dr Biddulph's analysis. He had described it as "mild."

[50]Ms Padfield says that the Tribunal had to assess the evidence; they were entitled to prefer the evidence of Dr Biddulph and they gave a satisfactory explanation. Moreover, she submits that it is striking that although Professor McLoughlin expressed the view that the dyslexia had impacted on day to day activities, he did not say that it had a substantial impact.

[51]We think that the reasons for preferring Dr Biddulph's report could have been explained more fully, although reading the Tribunal's judgment as a whole, the Tribunal also indicated that they did not consider that Professor McLoughlin's finding that Mr Paterson had difficulty with proof reading was justified. However, in our view this particular ground does not take matters very far, even if correct.

[52]As Morison P observed, giving the judgment of the EAT in Vicary v British Telecommunications plc

[1999] IRLR 680

, the importance of the medical evidence is to help the tribunal determine whether there was a relevant impairment and what the effect of medication might be. In addition the expert may report on his or her own understanding of the ease with which the patient was able to carry out day to day activities. However, as we have said, what constitutes day to day activities and whether the adverse effect is substantial is ultimately a matter for the tribunal, not the doctor.

[53]In this case it is accepted that there was an impairment, namely dyslexia. Whether it is properly described as minor or mild, or something more severe, is not of itself of any great moment. The issue is whether its effect, however it is described, is to have a substantial adverse effect on normal day to day activities. That is for the tribunal to decide in the light of all the evidence. A misdescription of the impairment, if misdescription there was, is of no materiality when answering that question.

[54]Equally, however, we reject Ms Padfield's submission that significance should be attached to the fact that Professor McLoughlin did not in terms refer to the fact that the effect on normal day to day activities was "substantial". It was not for him to comment on that matter at all, and it would have been better had he refrained from so doing. The Tribunal were right to ignore those comments -both what he did say about normal day-to-day activities and also what he did not. The omission of the word "substantial" in that report lends no support at all to the Tribunal's conclusion. Misdirection by the Tribunal

[55]The fourth and principal ground of appeal is directed at the Tribunal's conclusion that the impairment had only a minor effect on day to day activities. This conclusion was reached on the basis that the difficulties faced by the appellant would have a substantial effect only in the context of a high pressure assessment or examination which the Tribunal considered was "by no means a normal day to day activity".

[56]Mr Laddie says that the Tribunal misdirected itself in reaching that conclusion. He relies in particular on some dicta of this Tribunal of Mr Recorder Langstaff QC in the Ekpe case at (para 32): "We should nonetheless emphasise that what is normal cannot sensibly depend on asking the question whether the majority of people do it. The antithesis for the purposes of the Act is between that which is "normal" and that which is "abnormal" or "unusual" as a regular activity, judged by an objective population standard. (Just as what is "substantial" for the purposes of the Act may best be understood by defining it as anything which is more than insubstantial. So too may what is "normal" best be understood by defining it as anything which is not abnormal or unusual or, in the words of the Guidance, "particular" to the individual applicant.)" 57. Mr Laddie submits that it is neither abnormal nor unusual for someone to take high pressure examinations, in some cases for the purposes of gaining promotion. On the contrary, it is a usual, if irregular, everyday activity.

[58]Alternatively, he submits that even if the activity of taking an examination is not itself is a day to day activity, once it is accepted that the appellant is disadvantaged because he suffers from a deficit in his reading and comprehension skills, that itself is a day-to-day activity.

[59]Mr Laddie further submits that this conclusion is strongly reinforced, indeed demanded, by the decision of the European Court of Justice in Chacón Navas v Eurest Colectividades SA

[2006] IRLR 706

. That case was not reported until after the Tribunal had made its determination. It was not referred to them.

[60]The ECJ had to consider the meaning of disability under the Framework Directive. As we have said, the DDA as amended is the domestic implementation of that Directive. The questions posed to the court were on a reference from Spain. The court was asked to hold whether discrimination on the grounds of sickness alone was a breach of the Directive. Not surprisingly, they held that it was not. In answering that question they analysed the concept of disability. The ECJ held that the concept of disability should be given a uniform and autonomous meaning throughout the EU. They defined the concept as follows:

"43 Directive 2000/78 aims to combat certain types of discrimination as regards employment and occupation. In that context, the concept of 'disability' must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life. 44 However, by using the concept of 'disability' in Article 1 of that directive, the legislature deliberately chose a term which differs from 'sickness'. The two concepts cannot therefore simply be treated as being the same. 45 Recital 16 in the preamble to Directive 2000/78 states that the 'provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability'. The importance which the Community legislature attaches to measures for adapting the workplace to the disability demonstrates that it envisaged situations in which participation in professional life is hindered over a long period of time. In order for the limitation to fall within the concept of 'disability', it must therefore be probable that it will last for a long time. …."

[61]The court later dealt with what it considered to be the implications of this for the obligation to make reasonable adjustments:

"50 In accordance with Article 5 of Directive 2000/78, reasonable accommodation is to be provided in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities. That provision states that this means that employers are to take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, unless such measures would impose a disproportionate burden on the employer. "

[62]Mr Laddie, in particular, focuses on the observation at paragraph 45 that what disability envisages are situations in which " participation in professional life is hindered over a long period of time". He submits that is precisely the situation here. Participation is hindered in promotion without reasonable adjustments being made to accommodate the effects of the disability.

[63]Ms Padfield contends that the Tribunal was fully entitled to reach the conclusion that it did. An examination or assessment is neither a normal nor a day to day activity, and to fall within the scope of the Act it must be both. She further submits that whilst it may fairly be said that participating in an examination is not an abnormal or unusual activity that does not mean that it is a day-to-day activity. She says that the Tribunal were right to compare Mr Paterson with the normal range in the population at large, and that it was an error to identify the effects by asking how he would have performed had he not suffered the impairment of dyslexia.

[64]She submits that the Tribunal applied that principle here and were entitled to conclude that whilst the appellant was disadvantaged with respect to his peers, he did not suffer a limitation which went beyond the normal differences in ability which exist between people.

[65]Ms Padfield did, however, recognise that it was difficult for her to maintain her stance in view of the Chacón decision. If that were binding on the EAT, then she conceded that the Tribunal's decision was incompatible with it. However, she submitted that we ought not to have regard to that case, for reasons we consider later. She also argued that even if we were bound by Chacón , it was not possible to interpret the 1995 Act, and in particular the concept of disability in section 1, compatibly with that decision.

[66]In our judgment, the appellant's submission is correct. We would have reached that conclusion simply taking domestic law on its own without any reference to the decision in Chacón . In our view carrying out an assessment or examination is properly to be described as a normal day to day activity. Moreover, as we have said, in our view the act of reading and comprehension is itself a normal day-to-day activity. In any event, whatever ambiguity there may be about that, in our view the decision of the ECJ in Chacón Navas is decisive of this case.

[67]We must read s1 in a way which gives effect to EU law. We think it can be readily done, simply by giving a meaning to day-to-day activities which encompasses the activities which are relevant to participation in professional life. Appropriate measures must be taken to enable a worker to advance in his or her employment. Since the effect of the disability may adversely affect promotion prospects, then it must be said to hinder participation in professional life.

[68]More fundamentally, in our view Ms Padfield's approach to establishing whether there the disadvantage was substantial is misconceived. In our judgment the only proper basis, as the Guidance makes clear, is to compare the effect on the individual of the disability, and this involves considering how he in fact carries out the activity compared with how he would do if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross section of the population, then the effects are substantial.

[69]It follows that this ground of appeal succeeds. Once the Tribunal had accepted that the appellant was disadvantaged to the extent of requiring 25% extra time to do the assessment, which is what Dr Biddulph considered appropriate, then it inevitably followed that there was a substantial adverse effect on normal day-to-day activities.

[70]We are reinforced in this conclusion by the implications of the contrary view. The purpose of the legislation, at least in part, is to assist those who are disabled to overcome the disadvantages which stem from a physical or mental impairment. The approach suggested by Ms Padfield and adopted by the Tribunal does not achieve that. Take the case of someone who has all the skills to be a highly successful accountant, but lacks manual dexterity. This may require that he or she should be given longer to do the relevant examinations. It would surely be no answer and would be wholly inconsistent with the purposes of the legislation, simply to say that that individual was not disadvantaged when compared with the population at large and therefore no obligation to make the adjustment arose. Yet as Ms Padfield accepted, that is the logic of her position. Perversity

[71]In view of our conclusion on this ground, we need say little about the final ground, which is that the decision was perverse. In truth, as Mr Laddie accepted, this is simply a reiteration of the earlier grounds. Essentially, it is alleged that the conclusion must be perverse because its effect is to restrict the opportunity for someone suffering from a recognised impairment seeking to obtain promotion on a level playing field. We have accepted the thrust of that argument, but it adds nothing to contend that it also amounts to perversity. There was a proper evidential basis for the Tribunal's conclusion; we simply think that it misdirected itself in law as to the legal effect of the findings it made. Are we bound by Chacón ?

[72]As we have said, Ms Padfield raised a preliminary issue as to whether we are entitled to have regard to the decision in Chacón at all. The argument runs as follows. The Directive was to be implemented within three years of the date when it was adopted, which was the 27 October 2000. However, under Article 18 of the Directive member states could have a further three year period to implement the provisions on age and disability discrimination to take account of their particular circumstances. The UK indicated that they wished to take advantage of that provision with respect to both forms of discrimination. However, they have to report back to the Commission annually if they take advantage of the extension. The UK subsequently reported that the Amendment regulations which came into effect on the 1 October 2004 completed the transposition of the employment aspects of the Directive, although further legislation on vocational training had still to be implemented.

[73]Ms Padfield submits that there is no duty on a court to construe domestic legislation in accordance with Community law until the date by which a Directive had to be implemented. This, she submits, is in accordance with the decision of the ECJ in Adelener v ELOG,

Case C-212/04

[74]In Adelener a Directive was belatedly transposed into national law after the date by which it ought to have been implemented. The question arose whether the obligation to interpret national law in accordance with the Directive existed from the date the Directive was published, or the date by which it had to be transposed into national law, or when the domestic legislation was actually passed. The Court held that in that situation it was from the time when it ought to have been transposed (para 115). Until that time there was a more limited obligation not to interpret domestic law in a manner which might seriously compromise, after the period for transposition has expired, attainment of the objective pursued by the Directive (para 123). In this case, says Ms Padfield, the final period for transposition had not expired until six years after the Directive was adopted i.e. 28 October 2006, and the alleged discrimination occurred almost a year earlier.

[75]Mr Laddie submits that the proper principle is that the duty to construe the law compatibly with the Directive applies from when the Directive is adopted. He submits that this was established in Mangold v Helm

[2006] IRLR 143

(ECJ). In any event, he says that there is a difference where, as here, the state has passed domestic law to give effect to the directive. Once that is done, the duty to construe the law consistently with EU law applies from when the implementing statute comes into force.

[76]We reject his analysis of Mangold . Whatever might have originally been thought to be the principle established in that case, Adelener plainly treats it as authority for the more limited proposition to which we have referred, namely that a state must not to take measures within the implementation period which might undermine the subsequent ability to transpose Community law into domestic law once the transposition period is exhausted.

[77]However, we agree with his alternative submission. It would be extraordinary if the legislation, designed specifically to meet the requirements of EU law, were suddenly to take on a new meaning once the period for implementing the Directive had expired. The purpose of the implementation period is to allow member states time to draft and introduce appropriate domestic legislation; it is not to deny the interpretative value of EU law, even after the domestic legislation transposing the relevant EU law has been implemented, until the permissible period has expired.

[78]For these reasons, we have no doubt that we are bound by the Chacón decision. Disposal

[79]The appeal succeeds. We substitute a finding that Mr Paterson was a disabled person within the meaning of s1 of the 1995 Act and the case must now be remitted to the Tribunal for determination of the claim on its merits.

Cited in 27 later judgments

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