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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Fyffes Group Ltd v. Bazley [2002] UKEAT 1043_01_2203 (22 March 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/1043_01_2203.html Cite as: [2002] UKEAT 1043_1_2203, [2002] UKEAT 1043_01_2203

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APPEARANCES

 

For the Appellant	Mr William S C Speirs Solicitor Messrs Brechin Tindal Oatts Solicitors 48 St Vincent Street Glasgow G2 5HS


 


JUDGE J McMULLEN QC

1. This is an appeal against a Decision of a Bristol Employment Tribunal, Chairman Mr J D Bedford, sitting on 12 July 2001, promulgated with Extended Reasons on 24 July 2001. At the hearing both parties were represented by solicitors and Mr Spiers, who represented the Respondent there, represents his client today. The appeal concerns a preliminary hearing to determine whether the Applicant was a disabled person for the purposes of section 1 of the Disability Discrimination Act 1995
2. The Tribunal recorded that the Applicant had been employed by the Respondent from 22 October 1990 until his resignation in November 2000. He was a supervisor in a fruit packing plant. It meant walking about the plant, driving a fork lift truck and sometimes lifting heavy boxes. He suffers severe osteoarthritis which required bi-lateral hip replacements in 1997 and 1998. In January 2000, he sustained a severe fracture to his left elbow and underwent internal fixation shortly thereafter. He had a third complaint which is not relevant to the proceedings. He contended that he was disabled. The Tribunal set up a preliminary hearing to determine that matter. The Tribunal found that he was disabled, having weighed the evidence of a Consultant Orthopaedic Surgeon, called on behalf of the Respondent, and the Applicant's GP, called on his own behalf. It is fair to say that the Consultant Orthopaedic Surgeon noted inconsistencies in respect of the upper limb lesion, between the account given by the Applicant of his movement, and what was found upon examination.
3. The Tribunal directed itself in accordance with the guidance given by the EAT in Goodwin -v- The Patent Office and the guidance to be taken into account in determining questions relating to the definition of disability issued by the Secretary of State. The Tribunal determined that it was satisfied that the Applicant suffered a degree of pain resulting from both his elbow and his left hip. It noted that these did not prevent the Applicant working a little longer after these lesions, and that he could carry out most day to day activities, provided it was recognised that he had a degree of pain or discomfort. The Tribunal noted that the combined effects of the upper limb and both hips could not be characterised as merely minor or trivial, but something more than that, and that they affect the Applicant's life, to some degree, every day. The Tribunal commented that whilst he has done remarkably well, they must be regarded as substantial. It is against that finding that Mr Speirs makes a number of criticisms.
4. Taking section 1 of the DDA, he identifies three issues: firstly he raises, as a matter of law, the treatment of the indefinite article in section 1, where it appears for the second time, thus:

"…. 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."

The question arises as to what extent the Act takes account of more than one impairment, since in the guidance notes, at A6, specific reference is made to more than one impairment, although the statute contains simply the singular. This may be a matter which can be resolved by reference to the Interpretation Act 1978, but nevertheless, we consider that a reasonably arguable point of law relates to that, and its relationship to the guidance note.

5. Secondly, Mr Speirs contends that the Tribunal has failed to evaluate the relevant material before it, by reference to the adjective "substantial" in section 1. As we have pointed out, the Tribunal refers to a degree of pain and discomfort and it identifies a number of activities, but we consider it is reasonably arguable that the Tribunal failed to carry out the sequential steps set out in Leonard -v- South Derbyshire Chamber of Commerce. These are to look at matters in the round and make an overall assessment of whether the adverse effect of an impairment or an activity is substantial, bearing in mind the need to concentrate on what the Applicant cannot do, or can only do with difficulty, rather than on things which can be done. The circumstances, therefore, required a finding by the Tribunal precisely as to the nature of the degree of impairment and the scope of activities, bearing in mind that it had before it a conflict between the Consultant dealing with the upper limb, and the Applicant himself.
6. It is also to be recalled that since the hearing in this case, the Court of Session has adjudicated in Law Hospital NHS Trust -v- Rush [2001] IRLR 611 indicating that the proper approach to the question of disability is to include an examination of how the Applicant fared at home and at work, and to examine any differences. In this context, the Tribunal makes no specific finding about the reservation of the Consultant about the Applicant's day to day activities at home - see page 15 of our bundle. We consider this is a reasonably arguable point to address at a full hearing.
7. Thirdly, Mr Speirs contends that the ability to carry out normal day to day activities has been inadequately addressed by the Tribunal. From what we have said about the Law case, there appears to be an arguable point arising there, and we will therefore allow it to go forward.
8. The second half of the appeal advanced before us today is based on perversity. It is contended that the Tribunal's Decision is entirely defective and lacking in proper findings in fact and proper consideration of the legal issues. We have let this matter go forward on the basis of the identification of the legal issues, drawn from section 1(1) of the DDA. These are legitimate issues relating to construction and to the application of those parts of the statute to the facts before the Tribunal. Essentially, the issue on perversity, as it is put to us, is that the Applicant was not a disabled person and it was perverse of the Tribunal, on the evidence before it, to come to that conclusion. It is submitted that in due course, the Tribunal should be invited to hear that afresh.
9. The allegation of perversity is not reasonably arguable. It may well be that a different conclusion is reached on a full hearing, as to the application of the law to the facts in this case, but there was evidence before the Tribunal of the matters upon which it needed to be apprised before it made its judgment on disability.
10. If we are right in acknowledging that there are reasonably arguable grounds on definitions put forward in the statute, then a decision can be made on a full hearing as to whether or not the Tribunal reached the correct conclusions in the light of what would be a proper direction. We do not consider it reasonably open to argue that the Tribunal had no evidence, or made a perverse Decision, and therefore that aspect of the appeal is dismissed and will not be heard by a full hearing.
11. Category B, for a day. The Applicant does not seek Chairman's Notes in the absence of an appeal on perversity, nor do we.