MRS M BOURNE v ECT BUS CIC [2009] UKEAT 0288_08_3103

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0288_08_3103Case No Appeal No. UKEAT/0288/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS M BOURNEAPPELLANTECT BUS CICRESPONDENT
Before
His Honour Judge Birtles Mr C Edwards Mr J R RiversDate 31 March 2009
[1]APPEARANCES For the Appellant MR JAMES MEDHURST (Representative ) Instructed by: Free Representation Unit 6th Floor 289-293 High Holborn London WC1 7HZ For the Respondent MR EDWARD MALLETT (of Counsel) Instructed by: Messrs Howard Kennedy Solicitors 19 Cavendish Square London W1A 2AW SUMMARY DISABILITY DISCRIMINATION: Disability The Employment Tribunal found as a fact that the Claimant was not disabled. That conclusion was challenged on various grounds including perversity. Appeal dismissed on the basis that there was adequate material before the Tribunal which permitted it to come to that conclusion. HIS HONOUR JUDGE BIRTLES Introduction This is an appeal from the judgment and reasons of an Employment Tribunal sitting at Watford on 14, 17 – 19 December 2007. The judgment and reasons were sent to the parties on 14 January 2008.[2]The Employment Tribunal held(a) that at the date of her dismissal from employment the Claimant was not a disabled person(b) the Claimant was not unfairly dismissed from her employment and(c) her application for a wasted costs order or a preparation time order was refused.[3]Mr James Medhurst, FRU Representative, appeared for the Appellant and Mr Edward Mallett of Counsel appeared for the Respondent. We are grateful to both of them for their written and oral submissions. History[4]The Respondent is a not-for-profit organisation providing public and other transport services to the local community.[5]The Appellant was employed by the Respondent as a bus driver from June 2004 until her dismissal in March 2006. The decision to dismiss the Claimant was taken on grounds of capability, as accepted by the Employment Tribunal: see Reasons paragraph 20.3; EAT Bundle page 13. This decision was found by the Employment Tribunal to be both procedurally fair and reasonable in all the circumstances: Reasons 20.2 and 20.4 - 6: EAT Bundle pages 13-14). The Appellant does not appeal against this aspect of the Employment Tribunal's judgment.[6]The background facts found by the Employment Tribunal are set out in detail in paragraphs 17.1 - 17.14 and 19.1 - 19.41 of the Reasons. We note that the Appellant does not seek to challenge any of these findings of fact and they are incorporated into this judgment.[7]The material findings of fact in relation to the issue of whether or not the Appellant was a disabled person are found at paragraph 17.2 - 17.14 of the Employment Tribunal's Reasons. The Employment Tribunal say this:
"17.2 On 11 February 2005 the Claimant was involved in a road traffic accident when driving one of the Respondent's buses. There was a collision to the rear of that bus. The Claimant, who had no previous significant back condition, suffered a soft tissue injury to her lower back and it caused her pain. 17.3 On 22 March 2005 the Claimant was assessed by the Respondent's Occupational Health Doctor, Dr Cheng, who concluded that she was fit to do some work but the Claimant was, he reported, adamant that she was unable to do any work. His view was that her symptoms were due to muscle spasm. 17.4 On 24 May 2005 the Claimant's own General Practitioner certified the Claimant as being fit to return to work: see [149]. 17.5 On 13 July 2005 the Claimant's physiotherapist provided a report addressed to the Claimant's GP [55]. The physiotherapist reported that the Claimant had a very limited lumbar range of movement due to pain. However, she reported that the Claimant had improved greatly with electrotherapy and other measures and her main problem was now sitting long periods which she needed to do for work. The physiotherapist reported that the Claimant could only sit for 3½ hours instead of her normal shift of 8 hours. 17.6 For a period of 6-7 months from the date of the accident the Claimant reported at paragraph 4 of her witness statement that there were many activities that she could not do at all. These included climbing stairs, lifting, bending, shopping, housework and bathing. We accept that statement but we do not accept the remainder of that paragraph. 17.7 On 25 July 2005, Dr Cheng provided a further assessment. He concluded, having reviewed her job content and clinically assessed the Claimant, that he was of the opinion that she should be fit to do more than she was currently prepared to do: see [58]. He reported that the Claimant insisted that she was unable to increase her hours at present. At this point in time the Claimant was doing 1½ round trips which involved a maximum of three journeys of 40 minutes length each. It was that limit that the Claimant said she could not increase. 17.8 We here record relevant findings in relation to the evidence of the joint expert, Mr Vanhegan. His view was that after 5 months, after such an injury as the Claimant reported, less than 10% of patients would still be in his words "acute" and after 18 months only 5% would still have problems and in those cases he would consider surgery. Mr Vanhegan's view was that paragraph 4 of the Claimant's written statement was exaggerated. His conclusion in his second report at [92-94] was at variance with his first report and it seemed to us was lacking in essential reasoning and we reject the conclusion on page 95 that the Claimant's condition satisfied the criteria of the Disability Discrimination Act 1995 from the day of the injury until she was dismissed in March 2006. 17.9 On 17 August 2005 the Claimant had a meeting with her employers during the course of which they made efforts to persuade her to increase her work load from 1½ round trips per day to 3 and suggesting [sic] that in the interim there be an increase to 2 round trips per day to begin with. Whilst the Respondent believed that the Claimant ought to be capable of increasing her work load in that way, the Claimant was unwilling to consider it. 17.10 On 25 August 2005 the Claimant was certified as unfit to work for a period of 2 weeks: see [178]. 17.11 On 19 September 2005, Dr Cheng reported that the Claimant's GP had prescribed an additional pain killer and, having reviewed her job content and clinically assessed her, his view was that the Claimant was then unfit to do driving duties because of her new medication. We did not find that the Claimant's condition was any worse in September and we accept the Claimant's evidence that from this point forward her ability to do day-to-day activities improved. 17.12 On 16 November 2006 the Claimant's GP produced a letter in which she gave her conclusion as to the Claimant's condition at that time as "severe disabling low back pain after sustaining whiplash injury. Despite all the methods of treatment she remains in pain and not able to work as a bus driver."
We reject this evidence because we accept Mr Vanhegan's view that this was not a whiplash injury and within three weeks of the provision of that report the Claimant sought work as a bus driver. 17.13 On 6 December 2006 through an organization called 'working links' the Claimant had an interview with an agency in Wembley for a position as a bus driver: see [244]. 17.14 Lastly, on 16 April 2007 the Claimant obtained work with Metroline as a bus driver. She told us that she still, to this day, suffers pain but we were told and we accept that she has had no time off by reason of back pain in her current job and indeed she does overtime."[8]The Employment Tribunal reached its conclusion on the issue of disability in paragraph 18 of the Reasons where it said this:
"Our conclusion, having regard to the above findings of fact, in relation to the issue of disability is that we cannot be certain whether the physical impairment that the Claimant suffered on the day of the accident in February 2005 had effects which lasted 12 months from the date of that accident, and we are not satisfied that there were substantial adverse effects upon the Claimant's ability to carry out day-to-day activities lasting 12 months from the date of the accident. It follows that the Tribunal did not need to consider the issues set out at sub-paragraphs 1(b) and (c) of paragraph 7 of the notes of the Case Management Discussion."
That Case Management Discussion took place on 14 February 2007 and paragraph 7 set out the issues to be dealt with at the substantive hearing[9]The Employment Tribunal made further findings of fact in paragraphs 19.1 – 19.41 of its Reasons. They are largely a recital of the Appellant's medical history including reference to the various reports which appear in the EAT bundle. They also refer to review meetings with the employer. It is clear from the structure of the Reasons that these further findings of fact were considered relevant by the Employment Tribunal to the issue of whether or not the Appellant had a claim for unfair dismissal and had brought her claim within time: Reasons paragraph 20. There is no reference to these further findings of fact contained in paragraphs 19.1 - 19.41 to having any reference to the issue of whether or not the Appellant was a disabled person within the meaning of s1.1 of the Disability Discrimination Act 1995 as amended. However, it is clear they are clearly matters of background. The Notice of Appeal[10]The Notice of Appeal is at EAT bundle pages 19 – 22. Altogether there are 12 grounds of appeal but grounds 8 – 12 were withdrawn. The Notice of Appeal therefore relates solely to an argument that the Employment Tribunal made an error of law in deciding that the Appellant was not a disabled person. Before considering the grounds of appeal in detail we think it is helpful to set out the relevant law. The law[11]Section 1 of the Disability Discrimination Act 1995 (DDA) says this: 1 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."[12]The relevant parts of Schedule 1 of the 1995 Act which apply in this case are as follows:
"2.- (1) The effect of an impairment is a long-term effect if- (a) it has lasted at least 12 months; (b) the period for which it lasts is likely to be at least 12 months; or (c) it is likely to last for the rest of the life of the person affected. (2) Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. (3) (not relevant) (4) (not relevant) 4.- (1) 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. (2) (not relevant)"
[13]The Employment Tribunal accurately summarised those provisions in paragraph 6 of its judgment. It noted that it had been referred to and considered the statutory guidance issued by the Secretary of State for Work and Pensions on 29 March 2006 and in particular paragraphs D7 and D20.[14]Paragraph D7 says this:
"D7. Normal day-to-day activities do not 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. For example, carrying out delicate work with specialised tools may be a normal working activity for a watch repairer, whereas it would not be normal for a person who is employed as a semi-skilled worker. The Act only covers effects which go beyond the normal differences in skill or ability."
[15]Paragraph D20 says this:
" Mobility D20. This covers moving or changing position in a wide sense. Account should be taken of the extent to which, because of either a physical or a mental impairment, the person finds difficult such day-to-day activities as: getting around unaided or using a normal means of transport; leaving home with or without assistance; walking a short distance; climbing stairs; travelling in a car or completing a journey on public transport; sitting, standing, bending or reaching; or getting around in an unfamiliar place."
The Grounds of Appeal in detail[16]With the facts as found by the Employment Tribunal and the relevant law in mind we turn to the grounds of appeal in detail. Ground 1 "(1) The Joint Expert compiled two reports, the first of which was equivocal and the second of which was compiled upon the insistence of the Respondent, on the basis of further evidence requested by them, in which he stated that the back injury lasted for twenty-six months. Upon questioning by the Respondent, the Joint Expert stated that the second report had reached a firmer conclusion than the first as it had been compiled with the benefit of more evidence. The Tribunal erred in preferring the first report to the second without an adequate basis to do so."[17]The Joint Expert was Dr John Vanhegan. His first report is dated 10 July 2007: EAT bundle pages 87-101 and in particular to his opinion at EAT bundle pages 12-14 of his report: EAT bundle pages 97-100. At page 97 Dr Vanhegan says this:
"It is not in dispute that she has been working normal working hours without time off since starting her new job in April 2007. The matter to be addressed is the 26 months' disability following her accident on 11 th February 2005… "
[18]Dr Vanhegan's second report is at EAT bundle pages 102-105. In his opinion at page 4 of his report Dr Vanhegan says this: "My review of the medical records and independent assessment of the Claimant is that her disability was very real and my recommendation to the Tribunal is that her condition did satisfy the criteria of Disability Discrimination from the day of the injury, 11.2.05, going off sick permanently 25.8.05 until dismissed in March 2006. She was sufficiently recovered to start a similar job for another employer from 16.4.07." [EAT bundle page 105.][19]Dr Vanhegan was asked a series of questions on his two reports by letter dated 27 November 2007: EAT bundle pages 106-107. His answer to the question relied on by Mr Medhurst is in a letter dated 7 December 2007: EAT bundle pages 108-110 at 108:
"(2) re: Guidance notes relating to Disability Discrimination Act impairments – there were none when I saw the Claimant 6.7.07 bearing in mind she had started a similar job 16.4.07. The disability pertaining at the time of her Claim relates to not being able to sit for periods of more than 3 hours driving her bus because of her back pain. When I saw her 6.7.07 I did not personally observe any disabilities relevant to the Disability Discrimination Act. I was not in a position to observe the Claimant on a day-to-day basis either at home or at work. (3) There is no inconsistency in my assessment of her ability to work at an earlier date than I saw her 6.7.07. This was based on contemporaneous records which I have quoted on pages 13 and 14 of my report of 10.7.07 from her GP, Dr Durica and her physiotherapist – physiotherapy report in July 2005 refers to her being able to sit for 3½ hours, having lost 2 st in accrued weight since going off sick and returning to the gym. A graduated return to work at that time was recommended. However, I then go on to list the fact that she was still on Tramodol, a morphine analogue in September 2005 and quote Dr Cheng writing 19.9.05 that at that time she was unfit for driving duties because of her new medication. As I understand the criteria for disability, this has to be considered in the absence of medication or other enabling treatment. It is not appropriate for anyone to be sitting for periods of more than about an hour at a time without the opportunity of getting up and moving about. However, one cannot alter the requirements of being a bus driver in this respect. The bottom line is that there was no proven ability to return to the sort of work she was doing before until she started her new job in similar capacity for Metroline 16.4.07. … (5) Re: Her disability being very real – I am conversant with the Disability Discrimination Act criteria. I am not a lawyer. From the medical point of view, this Claimant was not fit to resume driving a public service vehicle while on morphine analogue analgesia for Health and Safety reasons. In spite of this, I note that she did initially return to work on a part-time basis, 25.5.05 for three days a week doing one trip per day only though her managers were pressuring her to increase the number of hours. Dr Cheng wrote to Ms Lawless at ECT Bus Ltd 25.7.05, saying an adjustment had been made for her to do 3-3½ hours on alternate days since 25.6.05 and repeated in his opinion that she should be fit to do more than she was currently prepared to do and warned her that her job was at risk. This is a matter for the Tribunal to consider as I did not see her at that time. (6) Her condition satisfies the criteria to the effect that she could not sit for a minimum of 3+ hours without analgesia and this disability flows from the date of the accident 11.2.05. It is a legal matter as to whether the medication should be ignored with regard to the enablement of powerful analgesia and still being under treatment from her physiotherapist and the Pain Clinic. (She had a caudal epidural injection for her back pain 14.2.06 at which time she was on Co-dydramol and no longer of Tramodol. (7) Re: Period of disablement – I have stated clearly above my view that she was not proven fit to resume previous employment until she started her new job at Metroline 16.4.07."
[20]Dr Vanhegan attended the Employment Tribunal hearing and was questioned by Mr Mallett. The notes of that cross-examination appear in the EAT bundle at pages 130-137. The Appellant herself also gave evidence in accordance with her two witness statements which are in the EAT bundle at pages 140-141 and 147-151.[21]As the Employment Tribunal noted in paragraph 17.8 of its judgment the reports did conflict. We agree with the Tribunal on this point. It is therefore incumbent on the Employment Tribunal to resolve this conflict of evidence. The Employment Tribunal approached the issue by considering all of the evidence before it and made reasoned findings of fact based upon that evidence. This included rejecting aspects of the Claimant's witness statement having had the benefit of her evidence under cross-examination. That approach is an entirely proper one and reveals no error of law.[22]The Tribunal considered all of the evidence and concluded that Dr Vanhegan's second report was at variance with his first report and was lacking in essential reasoning and therefore rejected his conclusion in his second report that the Appellant was indeed disabled within the meaning of Section 1(1) of the 1995 Act. That reasoning has been elaborated in the Employment Judge's answer to a Barke request. This appears at EAT bundle pages 65-66:
"1. Paragraph 17.8 of the judgment Dr Vanhegan's report of 10 July 2007 [76 – 91] and in particular in the opinion which begins at [87] does not suggest that the Claimant was suffering from a physical impairment that was likely to result in her being a disabled person within the meaning of the Disability Discrimination Act 1995. For instance the injury was described as a soft tissue jarring at the low back. The Claimant's tolerance to sitting for 3½ hours is extremely good as anybody in a sedentary occupation is advised to get up and move about at least every hour. He commented that Dr Cheng had expressed the opinion on 22 March 2005 that the Claimant was capable of doing some work and had repeated this opinion later. Therefore when, in his second report of 20 November 2007 [92 - 94] Dr Vanhegan concluded: "
My review of the medical records and independent assessment of the Claimant is that her disability was very real", one would have expected some reasoning to support that conclusion. There is none. In a short opinion in that report Dr Vanhegan makes reference to the fact that fibroids may be a cause of heavy menstrual blood loss but are not sufficient to give rise to constant back pain, that she was sufficiently recovered to start a similar job from the 16 April 2007 and that she could possibly have coped with driving duties as from July 2005 if it had not been for the prescription of strong medication. That short conclusion follows a narrative description of computer records relating to the Claimant's attendance upon her own medical advisers and correspondence. What was lacking was any form of reasoning to support the conclusion that her disability was very real. Lastly, in response to questions put by the parties [97b-97d], Dr Vanhegan said that he did not personally observe any disabilities relevant to the Disability Discrimination Act 1995 in July 2007. Further, at paragraph 5 [97c] Dr Vanhegan appears to back away from the conclusion in his second report that the Claimant was a disabled person saying it was a matter for the Tribunal to consider as he did not see her at the time."[23]In our judgment this was a decision open to the Tribunal in the light of the evidence before it. We note that Dr Vanhegan was unable to support the conclusion in his second report when questioned: EAT bundle pages 133-135.[24]Mr Medhurst suggests that, when questioned, Dr Vanhegan stated he had reached a firmer conclusion in his second report as it had been compiled with the benefit of more evidence. We agree with Mr Mallett that this suggestion is not borne out by the evidence. All of the evidence shows that Dr Vanhegan was singularly unclear as to the basis for his conclusions. In our judgment the Tribunal was right in the absence of clarity to reject his conclusions on the evidence before it. Grounds 2 – 3 "(2) The Tribunal failed to give any weight to the report of the consultant for the personal injury claim, which was written thirteen months after the accident and predicted that the injury would last for another six months. It was an error of law for it to disregard clearly relevant evidence; (3) It was perverse to find the report to be admissible but subsequently attach no weight to it."[25]Grounds 2 and 3 amount to the same thing: an allegation that the Tribunal's decision on the question of disability was perverse on the grounds that it "failed to give any weight" to the report prepared by Dr George. Dr George's two reports are 4 December 2005: EAT bundle pages 71 – 79 and 12 March 2006: EAT bundle page 80. They were prepared for the purposes of a personal injury action brought by the Appellant. The passages relied on by the Appellant are paragraph 14 of Dr George's first report: EAT bundle page 75:
"14. My clinical examination showed that she has tenderness in her left sacroiliac joint as well as in the mid line. She also has limitation of movements of her lumbar spine with reduction of straight-leg raising on the left side."
And the last paragraph of his second report: EAT bundle page 80:
"I believe that the sciatic pain is coming from her left sacro-iliac joint. It is my opinion that during the accident she suffered sprain of the sacro-iliac joints. I suggest that she should have a course of physiotherapy and back exercises. With this treatment it is my opinion that she will be free of her symptoms within the next six months. I do not expect her to have any residual disability arising from this injury."
[26]The appeal on grounds 2 and 3 is perversity. The law on this issue is well-known. In Stewart v Cleveland Guest Engineering Ltd [1994] IRLR 440 at 443 para 33 Mummery J (as he then was) said this: "Whenever an appeal is based on the perversity ground, this Tribunal must be extremely cautious not to conclude that the decision of the Industrial Tribunal is flawed because the Appeal Tribunal would have reached a different conclusion on the evidence or thinks that another Industrial Tribunal would have reached a different conclusion on the evidence. An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts. This Tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is "irrational", "offends reason", "is certainly wrong" or "is very clearly wrong" or "must be wrong" or "is plainly wrong" or "is not a permissible option" or "is fundamentally wrong" or "is outrageous" or "makes absolutely no sense" or flies in the face of properly informed logic".[27]In Yeboah v Crofton [2002] IRLR 634 at 643 paragraphs 92-95 Mummery LJ made it clear that a perversity appeal should only succeed where "an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal, on a proper appreciation of the evidence and the law, would have reached. Thus an argument that a finding by an Employment Tribunal is "contrary to the weight of the evidence" is not sufficient in law to constitute perversity: Chiu v British Aerospace plc [1982] ICR 156 .[28]In our judgment the Appellant has failed to reach the threshold for perversity set out by the authorities we have just cited. This applies not only to ground 1 but also to grounds 2 – 3. The fact that Dr George's evidence is not referred to in the Employment Tribunal's findings of fact on the question of disability does not mean that it was not considered or that was the Employment Tribunal failed to give any weight to it. The evidence was clearly considered in the broader context of the case: see paragraphs 19.31 and 19.32 of the Reasons: EAT bundle pages 10-11. In a second answer to a Barke remission the Employment Tribunal has made it clear that Dr George's report did not affect its decision on disability: EAT bundle page 66.[29]Furthermore, we note that Dr George's evidence was not prepared for the purpose of assisting the Employment Tribunal in determining disability under Section 1(1) of the 1995 Act. It was prepare solely for the purpose for the purpose of the Appellant's personal injury claim. Ground 4 "(5) The Tribunal failed to address itself to the case of EPK v Metropolitan Police Commissioner [2001] IRLR 605, which states that it is exceptional for there to be a substantial adverse effect upon the capacities in the Schedule to the Act but not upon normal day-to-day activities. If a mobility was affected such that the Claimant was unable to drive a bus, the Tribunal failed to explain why other activities, like sitting for long periods or driving a car, were not so affected."[30]The argument here is that since the Appellant was unable to drive a bus this must necessarily mean that she could not sit for long periods or drive a car and that the injury must therefore have had a substantial adverse effect on her day-to-day activities. In our judgment this ignores the fact that the Tribunal's decision was based upon its conclusion that the adverse effects on the Appellant's day-to-day activities were not accepted as having lasting twelve months. It follows that the Tribunal did not accept that the Appellant was unable to drive a bus for a period of twelve months (and therefore sit for long periods or drive a car by association) as she alleges but accepted Dr Cheng's evidence that the Claimant was unwilling to do so. The evidence of the injury having a substantial adverse effect on the Appellant's day-to-day activities was indeed very scant. In her second (and signed) witness statement dated 9 December 2007 at paragraph 4 (EAT bundle page 147) the Appellant says this:
"(4) For the first six or seven months, there were many activities I could not do at all, including climbing stairs, lifting, bending, shopping, housework and bathing. I would always need to have someone there with me in order to be able to go anywhere at all."
The same paragraph 4 appears in another witness statement which is unsigned at EAT bundle page 140. The notes of the Appellant's oral evidence at EAT bundle pages 111 – 130 do not take the matter very much further. All the emphasis appears to have been on the first six or seven months following the accident and not on a twelve month period. Ground 5 "(5) The Tribunal disregarded the decision of the ECJ in Cachón Navas v Eurest Colectividades SA [2006] IRLR 706 as applied in Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763 . In this case a disability is said to be a situation where "participation in professional life is hindered over a long period of time." Because the Claimant could not perform her job for over a year and was dismissed on grounds of incapacity, she should be considered disabled."[31]In our judgment this argument is premised upon the Tribunal finding as a matter of fact that the Appellant could not perform her job for over a twelve month period. The Tribunal did not make any such finding of fact. On the contrary it found that the Appellant could do more work than she was prepared to do (Reasons paragraph 17.7); that she had exaggerated her position (Reasons paragraph 17.8); that as from September 2007 the reason for her not being able to complete her work was because of the side effects of pain killers she was taking (Reasons paragraph 17.11 and that her ability to carry out normal day-to-day activities improved from that time (Reasons paragraph 17.11).[32]In any event even if the Appellant could not fully carry out her job of driving a bus for an eight hour shift that is not a normal day-to-day activity under the principles of the Chacón Navas case or the Paterson case. Ground 6 "(6) It was perverse to find that the Claimant was fairly dismissed for incapacity but there was not a substantial adverse effect upon her day-to-day activities at the relevant time."[33]This is a further perversity appeal. The legal tests already set out above apply. As we understand Mr Medhurst's submission it can be taken in two ways. It could be a general submission that anyone dismissed for incapacity must therefore also be disabled. All cases are fact sensitive. We reject such a general submission outright. If Mr Medhurst's submission is that in this particular case because the Appellant was dismissed for incapacity she must have been disabled then we also reject his submission that on the facts of this case the Employment Tribunal was bound to find that the Appellant was disabled within the meaning of the 1995 Act. An employee may be medically able to do more than they are willing to do (as Dr Cheng thought in this case) and where an employee is subsequently dismissed for capability reasons it cannot be right that the Employment Tribunal is bound to find that the employee's ability to carry out day-to-day activities is adversely affected to a substantial extent. The judgment was one the Employment Tribunal were entitled to come to on an extensive examination of the facts of this case. There is no perversity. Ground 7 "(7) It was perverse to find that the Claimant would have been dismissed for incapacity even if there had been a more thorough investigation but her day-to-day activities were unaffected."[34]This is a further perversity appeal. The same principles of law set out above apply. The reference is to paragraph 20.4 of the Reasons where Employment Tribunal say this:
"20.4 The Claimant's case under this heading was that the Respondent failed to investigate the medical position fully enough and failed to investigate the possibility of alternative employment. As regards medical information, it is true that the most recent substantive report from Dr Cheng was produced in September 2005. On that occasion he had advised that the Claimant could not work because of the medication that she was taking. Prior to that, he was of the view that she was fit to perform at least some of her duties and she had been signed off as fit to work by her GP in May 2005. The Claimant had apparently ceased taking the medication that prevented her from driving. We have considered what might have happened if that fact had been known to Dr Cheng. If he had been invited to produce a further report, in all probability he would have concluded that the Claimant was fit to do at least some work because the restriction dictated by the medication no longer applied. Conversely, if told that the Claimant was still on that medication, he would have advised that she was not fit to work for that reason. What drove the Respondent to dismiss the Claimant against that medical background was the Claimant saying that she could not work, so in our view it would have made no difference if the Respondents had sought an up-to-date report from Dr Cheng."
[35]The Employment Tribunal therefore concluded that whatever efforts the Respondent made, the Claimant would not return to work. It was not the case, as the Appellant seeks to suggest, that further investigation would have served to prove that she could not carry out day-to-day activities. We see no perversity in the approach of the Tribunal on this issue at all. Conclusion[36]For these reasons the appeal is dismissed.

Cited in 1 later judgment