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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Miller v. An Order And Judgment Of Employment Appeal Trobinal [2005] ScotCS CSIH_71 (13 October 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_71.html Cite as: [2005] ScotCS CSIH_71, [2006] IRLR 112, 2005 GWD 32-615, 2006 SC 155, 2005 SLT 1074, [2005] CSIH 71 |
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Miller v. An Order And Judgment Of Employment Appeal Trobinal [2005] ScotCS CSIH_71 (13 October 2005)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Penrose Lord Kingarth Lord Drummond Young
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[2005CSIH71] XA145/04 OPINION OF LORD PENROSE in APPEAL TO THE COURT OF SESSION under Section 37(1) of the Employment Tribunals Act 1996 by WALLACE MILLAR Appellant; against An order and judgment of the EMPLOYMENT APPEAL TRIBUNAL dated 23 September 2004 _______ |
Act: Napier, Q.C.; L Welsh; Disability Rights Commission (Appellant)
Alt: Paterson; Solicitor for Commissioners of Revenue & Customs (Respondents)
13 October 2005
[1] The appellant was employed by the Inland Revenue. On 17 May 2002, the Board of Inland Revenue intimated to the appellant, by letter, that the Board could no longer retain him in employment, and that he was to be dismissed from public service, on the grounds of unsatisfactory attendance, with effect from 15 August 2002. The letter intimated the appellant's rights of appeal under the Revenue's internal appeals procedures. The appellant followed the internal appeal procedure, but his appeal was refused by the Civil Service Appeal Board. The appellant applied to an Employment tribunal complaining that he had been unfairly dismissed, both generally and in particular on grounds of disability discrimination. Following the decision of the Civil Service Appeal Board, a hearing on directions was held by the Employment tribunal on 7 May 2003. The Revenue intimated that the Board did not accept that the appellant was a disabled person within the meaning of the Disability Discrimination Act 1995. A hearing was therefore held to determine, as a preliminary issue, whether the appellant was within the scope of the Act. [2] The appellant's application to the Employment tribunal set out the basis of his complaint, so far as it bore on the limited issue before the Tribunal, as follows:"I believe that I have a disability as defined by the Disability Discrimination Act. I suffered an accident at work in July 1998. I slipped in the toilets and hit my head on a sink. After a fortnight an injury to my left eye became apparent. This has been diagnosed as primary photophobia and secondary ptosis. The condition continues to this day. Specialists have said that the condition may clear up but there is no guarantee. As a result of this disability I cannot drive on sunny days or at night (because of sensitivity to on coming headlights). I cannot use a VDU for more than fifteen minutes. I cannot walk in bright sunlight.
After the accident I was off work for ten days. I went back to work for a fortnight. I then went off work and I have been off work ever since."
"Following further approaches from the applicant himself and Dr Blyth on his behalf, Dr Lueck suggested that the applicant be seen by staff in his department who were conducting a study on unexplained motor symptoms jointly with the Liaison Psychiatry Department. This resulted in his being seen in January 2001 by Dr Jon Stone, registrar in neuropsychiatry, who encouraged him to see his problem as photophobia, which could be treated by graded exposure to light, and also discussed with him the interaction of psychological factors. He continued to attend Dr Stone's clinics on a regular basis throughout 2001, and following his clinic in June, Dr Stone reported him as making slow but definite progress. Dr Stone also entered into correspondence with the respondents' occupational health adviser and with the respondents' human resources section regarding possible arrangements for his return to work.
Over this period, the applicant was also seen on a number of occasions by Drs Saravolac and Freeland, specialists in occupational medicine, who acted as advisers to the respondents, to assess his condition and advise on the prospects of his return to work and the arrangements which they considered should be made for this purpose. In his report on a meeting with the applicant on 2 October 2000, Dr Freeland stated:
'There appears to be no organic cause for the ptosis currently suffered by Mr Millar. His complaints of photophobia and ptosis cannot be logically explained by the trauma he experienced during the accident. The diagnosis by default has resulted in functional ptosis being the preferred option.'
It was clear from the applicant's own evidence to the tribunal that he suffered considerable difficulty in coping with situations where he was exposed to particularly bright light. These included being outdoors in conditions of bright sunlight, which was a problem both in general, and had in particular reduced his participation in gardening activities; while this was predominantly a problem of the summer months. During winter months he experienced problems indoors through being in artificially lit rooms for longer periods. He also experienced problems with driving a car, being unable to drive at night due to the glare of headlights, in watching television, which he could only do for relatively short periods of time, and in operating a computer, because of the glare from the VDU. In addition to the problems caused (due) to his eye becoming watery and leading to blurred vision, he also suffered from headaches, which he described as very severe, and while they were susceptible to treatment by painkillers and rest, at their onset he was unable to perform any other activity. The degree of severity of these problems varied over the period, but they were always significant, and remained so.
For the purposes of this hearing, the applicant was seen by Dr Grant on 20 July 2003, and in a supplementary report written in the light of the provisions of the Disability Discrimination Act, he stated:
'Mr Millar complains of many symptoms: eg light sensitivity in left eye with resultant partial closure of the eye, headache/neck ache, numbness on left cheek, symptoms of depression.
"Although the applicant's case focused very much on the adverse effects, substantially (sic) and long-term nature of his impairment, we have to look first at the nature of the impairment, particularly in the light of the restricted definition applying to mental impairment. The applicant's case was that his impairment was a physical impairment, by reason of the physical manifestations of it, with any psychological effects as secondary to that, and we had considerable sympathy for that approach. We were however directed to the judgment of the EAT in the cases of Rugamer v Sony Music Entertainment UK Ltd and McNicol v Balfour Beatty Rail Maintenance Ltd [2001] IRLR 644. There was much in common between the condition of the applicants in these cases and that of Mr Millar."
"The distinction drawn and approved by the Court of Appeal between a 'physical disablement' which is a manifestation of a person's physical condition, and a 'functional disablement' which is not, even though it may have the effect that they are unable to carry out physical activities, is in our judgment of direct assistance in considering the line between physical and mental impairments which we have to attempt to draw in this case.
Consistently with that approach, it seems to us that neither of the tribunals in the two present appeals can be shown to have erred in law in declining to accept, on the evidence as presented to them, that the 'overlay' which appeared to be the only explanation for the restriction of the appellant's activities amounted to 'physical impairment' within the meaning of the Disability Discrimination Act 1995. In each case there was evidence before the tribunal making it proper to conclude, as they did, that whatever 'impairment' or restriction the applicant might be said to suffer was not physical but a manifestation of his psychological make-up; and on that basis no physical impairment had been established."
The Tribunal's decision was then expressed as follows:
"These cases were appealed to the Court of Appeal, but Rugamer was settled before the appeal was heard, and the decision in McNicol was upheld [2002] IRLR 711.
In our view, the circumstances of the applicants in these cases and the attempts to establish the causation for the symptoms which they suffered was remarkably similar to those of the applicant in this case, and in the absence of any evidence regarding the nature of the mental impairment which would enable us to determine whether it satisfied the test of being a well-recognised illness, we must find that the applicant is not and was not at the time of the acts complained of, a disabled person."
"1(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."
Schedule 1 paragraph 1 provides:
"1(1) 'Mental impairment' includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness."
"11 It is not necessary to consider how an impairment was caused, even if the cause is a consequence of a condition which is excluded..."
Save in the case of mental impairment, when identification of the cause is material in considering whether there is clinically well-recognised illness, causation is irrelevant.
[14] Mr Napier's formal submissions were: (a) that impairment was nothing more than the presence of something that limited or restricted the ability of the individual to do certain things; and (b) in considering whether or not there was a physical impairment, it was not necessary to identify a particular cause of it. It was a small, but important point in practice. If it were necessary to go behind the fact of the physical condition presented by an applicant and show its cause, there would be an increased burden of proof on the applicant. [15] The applicant's case was based wholly on the proposition that he had a physical impairment. It was never submitted on his behalf that he had a mental impairment. Properly understood, the Tribunal's decision was that it was not satisfied that there was a relevant mental illness. By implication, it appeared that the Tribunal had held that there was not a physical impairment. And the reason for that finding was that it considered that it was driven to that result by the case of McNicol. The Tribunal considered that it was bound to reach that decision because of the principles it associated with the two conjoined cases. The decision was not reached on an assessment of the evidence as a whole. It was clear that it depended on the perception that there was a rule directing its deliberations. If that were a correct interpretation of the decision, there was no basis in law for the view on which the Tribunal proceeded. [16] Mr Commissioner Howell had incorporated into his reasoning a test of physical impairment that required identification of a physical cause. That approach was not supported when the McNicol case reached the Court of Appeal. The Tribunals' decisions were upheld on the facts. But the court did not approve his approach. Lord Justice Mummery emphasised that one had simply to apply the language of the Act, not elaborate on it. Again, the approach was inconsistent with College of Ripon & York St John v Hobbs [2002] IRLR 185. What the Employment tribunal should have done and did not do was to ask itself whether, on all of the evidence, it could hold, directly or by inference, that there was, physically, something wrong with the appellant. MacIver v Capita Business Services Ltd Appeal No EATS/0065/02 illustrated the correct approach: the Employment tribunal had not exhausted the issues before it by restricting its decision to holding that the applicant's symptoms were not caused by a specified medical condition. [17] For the Revenue, Miss Paterson accepted that a purposive approach to interpretation of the 1995 Act was appropriate. But the appellant faced a high test: there was no attack on the factual findings of the Tribunal. There was evidence of psychological factors underlying the appellant's condition. But there was no evidence that the appellant suffered from a well-recognised mental illness. Dr Grant's evidence excluded any physical cause. The issue between the parties turned on the cause of the condition. Where that was the case, it was not enough to say that the appellant was impaired. It was necessary to go further and to show that the impairment was due to substantial causes, and that it was long-term. These factors were intimately connected with the nature and causes of the impairment. It was difficult to see how the Tribunal could apply the Act as a whole without resolving issues of causation where they were live issues between the parties. The onus was on the applicant: cf Blacker v Servisair (UK) Ltd Case no S/105914/03. On the wording of the Act, there had to be either a physical or mental impairment. In Blacker the applicant's condition could have had either physical or clinically well-recognised mental causes: medical science could not distinguish between them. But the applicant qualified on either approach. In the present case, by contrast, the Tribunal had to resolve one question only, whether the appellant's condition was caused physically. [18] Miss Paterson argued that Mr Commissioner Howell's approach in MacIver v Capita Business Services Ltd was correct, and had not been disapproved by the Court of Appeal. If the court had thought that he was wrong in law, that would have been said explicitly. It was very difficult to disturb the fact finding tribunal's findings, as the College of Ripon illustrated, where the tribunal has addressed the right question and has placed a sensible interpretation on the evidence. This was a case in which, on a sensible view of the evidence, there was no organic cause of the symptoms. Dr Grant's evidence was before the Tribunal. It was open to the Tribunal to conclude that the appellant did not have a physical impairment. [19] Finally, Miss Paterson submitted that, if Mr Napier were correct that physical manifestations established physical impairment, that would entitle any complainer, including one with a well-recognised mental disorder, to obtain protection on the basis of a physical impairment irrespective of the fact that the physical signs and symptoms were manifestations of the mental illness. Similarly, it would entitle an applicant to protection who had physical manifestations of a mental illness that was not within the scope of the clinically well-recognised classes. That was not how the Act was intended to operate. Where an applicant contended that there was a physical impairment, the Tribunal was entitled in case of dispute to examine causation, and to hold that, if no physical cause of the condition could be established, the applicant had failed to prove his case. [20] On the face of it, in my opinion, McNicol v Balfour Beatty Rail Maintenance Ltd was a singularly inauspicious case in which to elaborate sophisticated rules for the interpretation and application of the 1995 Act. The report of the Employment Appeal Tribunal proceedings ([2002] ICR 381) sets out at very considerable length the evidence available to the employment tribunal, culminating in the finding, in paragraph 27, that the applicant's evidence had failed to satisfy the Tribunal on a balance of probabilities that he had suffered from substantial long-term adverse effects of back pain on his ability to carry out his normal day-to-day activities. The Tribunal doubted his credibility on a number of issues, and were persuaded by video evidence that he was fully capable of ordinary life without significant difficulty with his back and neck. Had the issue been disposed of by a judge at first instance in the adversarial atmosphere of an ordinary court, it is likely that the findings would have been more robust. And so, it is no surprise that when the case came before the Court of Appeal, Mummery LJ disposed of the merits of the appeal in the first four paragraphs of his opinion: no question of law arose; the appellant was attempting to challenge facts which the Employment tribunal had been entitled to find on the evidence before it. But leave to appeal had been granted on the ground that the meaning of physical and mental impairment were of general importance. [21] Lord Justice Mummery dealt with the only general point that he considered it worth making that is relevant for present purposes as follows:"17. The approach of the tribunal should be that the term 'impairment' in this context bears its ordinary and natural meaning. It is clear from Schedule 1 to the 1995 Act that impairment may result from an illness or it may consist of an illness, provided that, in the case of mental impairment, it must be a 'clinically well-recognised illness'. Apart from this there is no statutory description or definition of physical or mental 'impairment'. The guidance issued under section 3 of the 1995 Act by the Department for Education and Employment on 25 July 1996 states that 'it is not necessary to consider how an impairment was caused' (Part 1 Introduction, paragraph 11) and some examples of physical and mental impairment are given (eg sensory impairments affecting sight or hearing), but no general definition or description of 'impairment' is attempted.
18. I agree with the recent observations of Lindsay J in College of Ripon & York St John v Hobbs .. para 32:
'Nor does anything in the Act or the Guidance expressly require that the primary task of the ascertainment of the presence or absence of physical impairment has to, or is likely to, involve any distinctions scrupulously to be observed, between an underlying fault, shortcoming or defect of or in the body on the one hand and evidence of the manifestations or effect thereof on the other. The Act contemplates (certainly in relation to mental impairment) that an impairment can be something that results from an illness as opposed to itself being the illness - Schedule 1, paragraph 1 (1). It can thus be cause or effect. No rigid distinction seems to be insisted on and the blurring which occurs in ordinary usage would seem to be something the Act is prepared to tolerate. Nor is there anything there to be found to restrict the tribunal's ability, so familiar to tribunals in other parts of discrimination law, to draw inferences ... '
19. It is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment with the stated effects. Such a decision can and should be made without substituting for the statutory language a different word or form of words in an ambitious and unnecessary attempt to describe or to define the concept of 'impairment'. The essential question in each case is whether, on sensible interpretation of the relevant evidence, including the expert medical evidence and reasonable inferences which can be made from all the evidence, the applicant can fairly be described as having a physical or mental impairment. The ordinary meaning of the statutory language and of the Guidance issued by the Secretary of State under section 3 (1) is sufficiently clear to enable the tribunal to answer the question on the basis of the evidence ... "
Miller v. An Order And Judgment Of Employment Appeal Trobinal [2005] ScotCS CSIH_71 (13 October 2005)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Penrose Lord Kingarth Lord Drummond Young
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[2005CSIH71] XA145/04 OPINION OF LORD KINGARTH in APPEAL TO THE COURT OF SESSION under Section 37(1) of the Employment Tribunals Act 1996 by WALLACE MILLAR Appellant; against An order and judgment of the EMPLOYMENT APPEAL TRIBUNAL dated 23 September 2004 _______ |
Act: Napier, Q.C.; Anderson Strathern (Appellant)
Alt: Paterson; Solicitor for Commissioners of Revenue & Customs (Respondents)
13 October 2005
[28] Given the lack of any clear findings by the Tribunal, I agree with your Lordship in the chair that the appeal falls to be allowed. I would only add that if, in the last paragraph of the decision, the Tribunal was intending (as counsel for the respondents submitted) to record, inter alia, a finding that the restrictions suffered by the appellant were manifestations of his psychological make-up (as was found in the case of the applicants in Rugamer v Sony Music Entertainment UK Ltd and McNicol v Balfour Beatty Rail Maintenance Ltd) then I, for my part, would be inclined to agree that nothing in the authorities to which we were referred would suggest that it would have been sensible or reasonable for the Tribunal to have decided that the appellant's impairment was other than a mental impairment.Miller v. An Order And Judgment Of Employment Appeal Trobinal [2005] ScotCS CSIH_71 (13 October 2005)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Penrose Lord Kingarth Lord Drummond Young
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[2005CSIH71] XA145/04 OPINION OF LORD DRUMMOND YOUNG in APPEAL TO THE COURT OF SESSION under Section 37(1) of the Employment Tribunals Act 1996 by WALLACE MILLAR Appellant; against An order and judgment of the EMPLOYMENT APPEAL TRIBUNAL dated 23 September 2004 _______ |
Act: Napier, Q.C.; Anderson Strathern (Appellant)
Alt: Paterson; Solicitor for Commissioners of Revenue & Customs (Respondents)
13 October 2005
[29] I am in complete agreement with your Lordship in the chair. The Employment Tribunal proceeded on the basis of the case was governed by the decision of the Employment Appeal Tribunal in Rugamer v Sony Entertainment UK Ltd. and McNicol v Balfour Beatty Rail Maintenance Ltd. The decisions in those cases, however, turned on their particular facts, and cannot in my view be regarded as governing any other cases. In my opinion the only matter of general importance that can be taken from McNicol is the remarks by Mummery LJ at paragraphs 16-19 on the approach to the meaning of "impairment" in the context of the 1995 Act. I respectfully agree with Mummery LJ that the term "impairment" should be given its ordinary and natural meaning; the word is in common usage, and I do not think that it is helpful to give it an elaborate exegesis. The same approach should in my view be followed in relation to the meanings of "mental" and "physical" impairment. [30] In the present case it is open to the Employment Tribunal to decide that the appellant's condition was either a physical or a mental impairment, according to the view that they take of the evidence. They must do so, however, on the basis of properly formulated findings in fact about the appellant's condition.
