The claimant suffered an injury at home which caused him concussion but no obvious brain damage and he went off sick. 5 months later his GP anticipated that the claimant would fully recover from the concussion and there should be some improvement in the next few months. That is, in less than 12 months from the date of the accident, the claimant’s disabling symptoms would have resolved. The GP also stated that there would be no need for any adjustments on his return to work. Crucially the GP said that the claimant was disabled under the Disability Discrimination Act but it was apparent that he based this conclusion on the nature of the symptoms the claimant was suffering as at that point in time, rather than by asking himself what was likely to be the position over the ensuing 12 month period. The claimant was dismissed after 5 months of absenteeism from work and he claimed disability discrimination at the ET. The ET held that he was disabled at the time of dismissal and the respondent appealed.

The EAT upheld the appeal. The ET could only conclude that the claimant was disabled if they had established he was disabled within the meaning of the DDA, and they were quite wrong to criticise the respondent for failing to make further enquiries of the GP because the onus lay on the claimant. There was no indication that the GP had any awareness of the legal test for disability, and even if he had such an awareness, the question as to whether the claimant was disabled lay with the EJ not the doctor.

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Appeal No. UKEATS/0007/11/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH EH3 7HF

At the Tribunal

On 9 November 2011

Before

THE HONOURABLE LADY SMITH (SITTING ALONE)

S G BAKER LTD (APPELLANT)

MR GARRY HAGGART (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MS ALICE STOBART (Advocate)

Instructed by:
Blackadders Solicitors
30 & 34 Reform Street
Dundee
DD1 1RJ

For the Respondent
MR NICHOLAS WHELAN (Solicitor)

Whelan & Co Solicitors
105 High Street
Arbroath
Angus
DD11 1DP

**SUMMARY**

DISABILITY DISCRIMINATION – Disability related discrimination

**THE HONOURABLE LADY SMITH****Introduction**

1. This is an employer's appeal from a Judgment of the Employment Tribunal sitting at Dundee, Employment Judge Mr I McFatridge. The Judgment was registered on 7 December 2010 and was in the following terms:

"The judgment of the Tribunal is that the claimant is a disabled person in terms of section 1 of the Disability Discrimination Act 1995 and was such as at the date of his dismissal by the respondents on 24 March 2010."

1. The findings in fact that are relevant, as made by the Employment Tribunal, can be summarised as follows. The Claimant was dismissed on 24 March 2010. He asserts that he was, at the date of his dismissal, a disabled person within the meaning of the Disability Discrimination Act 1995 and that, in dismissing him at that time, his employers unlawfully discriminated against him.

1. The Disability Discrimination Act, which was in force at the relevant time, provides in terms of s.1 (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."

1. Schedule 1, to which that subsection refers, provides in paragraph 1(1)(c), that the effect of an impairment is substantial if the period for which it lasts is likely to be at least 12 months. I note that a Pre-Hearing Review was fixed for 3 December 2010, to determine whether or not the Claimant was a disabled person at the relevant time, namely the date of his dismissal.

1. The background was that the Claimant fell down stairs in his home environment on 8 November 2009. He suffered concussion, according to a diagnosis on 15 November 2009. Sometime after 15 November, he had a CT scan. It showed no serious damage and no tumours. The concussion caused him, however, to suffer headaches, nausea and dizziness. At paragraph 9 of the Judgment of the Employment Tribunal, it stated:

"9. The claimant's symptoms remained at a similar level of severity until around March/April 2010. Up to that time the claimant was entirely unable to do anything for himself."

1. However paragraph 9 is at odds with the report by the Claimant's GP, Dr Fraser, dated 4 March 2010, a report which was relied on heavily by the Employment Judge and the terms of which include:

"He would not be able to remain functional within his workplace for longer than 1 or 2 hours."

1. That is, that the Claimant would have been able to do some, although not much, work, paints a rather different picture from someone who was "entirely unable to do anything for himself". Turning to Dr Fraser's report of 4 March, a report dated about five months post-injury, I note that it includes the following terms:

"I would anticipate that Mr Haggart will fully recover from this concussion given the lack of obvious brain damage. The time for recovery from concussion is very variable, but I would certainly hope that within the next few months there should be improvement."

1. The report also states:

"I would hope that when he improves he would be able to return to normal employment and you would not need to make any adjustments for him."

1. Accordingly, Dr Fraser's advice, as at March 2010, was that within a few months, the Claimant should improve and, as he adds in paragraph 4, be able at that point to return to work without any adjustments being made for him. That is, in less than 12 months from the date of his accident, and certainly before November 2010, his disabling symptoms would have resolved. Dr Fraser also states at paragraph 4 of his report that the Claimant is disabled, under the Disability Discrimination Act, but it is apparent that he bases that conclusion on the nature of the symptoms the Claimant was suffering as at that point in time, and his inability to return to work as at March 2010, rather than by asking himself what was likely to be the position over the ensuing 12 month period.

1. At the date of the hearing, the Claimant was disappointed with his progress. He said he had a constant sore head. He had good days and bad days. He had continuing dizziness. His mobility was affected and he had difficulty with ordinary tasks like carrying shopping and housework. He felt that the accident had changed his life. An up-to-date medical report was also considered at the date of the hearing, in which Dr Fraser again expressed the view that the Claimant was, as at the date of his report, which was October 2010, a disabled person in terms of the legislation.

1. At paragraph 19 of the Employment Judge's written reasons, he makes a specific finding that the Claimant was disabled as at the date of the hearing, but does not explain why he considered it appropriate to address that question at all. At paragraph 22, he does realise apparently, that he required to ask himself what was the likelihood, as at 24 March 2010, that what he refers to as the substantive effect, would last at least 12 months. He recognised that the only medical evidence he had was the General Practitioner report, but he failed to observe or record, or make any findings in respect of, the evidence given by the Claimant before the Tribunal, to which I will refer later.

1. At paragraph 23, in what reads as a reversal of the relevant onus, the Employment Judge states:

"23. I did not agree with the respondents' position that the doctor's report indicated that the claimant would not continue to suffer a substantial adverse affect from his impairment for a period of 12 months."

1. That, of course, was not the appropriate question. It was not for the Respondent to show that the Claimant would not suffer an adverse effect for a 12 month period. At paragraph 24, the Employment Judge treats as relevant, and apparently gives significant weight to, Dr Fraser's view that the Claimant was a disabled person within the meaning of the Disability Discrimination Act. He so finds on the basis that there was nothing to suggest that Dr Fraser was not aware of the requirements of the statutory definition.

1. He approaches matters that way rather than asking himself whether the Claimant was disabled and, importantly, looking at what as fact he actually found regarding the Claimant's symptoms and medical prognosis. The latter was particularly important in this case. In particular, there is no indication that the Employment Judge had regard to the fact that the General Practitioner was expecting the Claimant to be fit to return to work within a few months, and that without any adjustments needing to be made.

1. At paragraph 25, the Employment Judge states he believed that it had to be assumed that the GP believed it likely that the substantial adverse affect would last more than 12 months. At paragraphs 26 and 27 he is critical of the Respondents for failing to make further enquiries of the General Practitioner in a way that reads as though, once more, he considered that there was an onus of some sort resting on them at the hearing.

1. In the course of the appeal this morning, Ms Stobart submitted as follows. First, the Employment Judge had failed to make relevant findings in fact. She referred to the Claimant having given evidence before the Employment Tribunal that he was aware of the General Practitioner report of 4 March, thought it was encouraging, and had agreed with what the doctor said. Also, he gave evidence that he had thought he would be back at work before the hearing, given that the General Practitioner had said he should be improving within a few months.

1. Ms Stobart submitted that given the importance of examining matters, as at the date of the alleged discrimination, namely the date of dismissal in this case, it was important that that evidence from the Claimant was recorded and findings in fact made in respect of it. I note in passing that the Employment Judge was satisfied that the Claimant was an entirely credible and reliable witness. Thus,had his evidence been recorded, it would have followed that the Employment Judge would and should have regarded it as factual matter that required to be taken account of.

1. Secondly, Ms Stobart referred to the Claimant's letter of appeal, following dismissal, which was before the Tribunal. In that letter he had sought to persuade the Respondents to reconsider their decision on the basis that:

"The doctor's report is positive in that it states that the doctor anticipates a full recovery and would expect improvement in a few months with return to full employment following the improvement."

1. The Claimant gave no other evidence in respect of his condition as at March 2010. Essentially, the evidence about it was the medical evidence from the GP report. The GP did not give evidence in support of that report but the Claimant agreed with it. Thirdly, Ms Stobart submitted that the Employment Judge drew inferences from the General Practitioner report which were not warranted; to assume, as he appeared to have done, that the doctor knew the terms of s.1 of the Disability Discrimination Act, the terms of schedule 1 and the terms of the relevant statutory guidance was going far too far.

1. The law in this area was, she submitted, complex and there was no basis to assume that her doctor would know and understand it. Ms Stobart submitted that the only finding open to the Employment Judge on the evidence was that the General Practitioner thought that the Claimant would be improved sufficiently to be back at work within a few months, not that he thought that he was going to be impaired for a 12 month period. The Employment Judge had found the Claimant entirely unable to do anything for himself, but that was contradicted by the General Practitioner report.

1. Fourthly, Ms Stobart continued, the Employment Judge had found the Claimant disabled as at 24 March but there was no evidence to support that. Dr Fraser's report certainly did not do so. So far as the Employment Judge having found that any reasonable person would have considered the Claimant disabled on the basis of medical evidence was concerned, that finding suffered from the same problems as the Employment Judge's other inferences. There was no basis for it.

1. Fifthly, the Employment Judge had made irrelevant findings in fact regarding the Claimant's condition as at the date of the hearing, which may have clouded his judgment. She referred in support of her submission on that matter to the case of McDougal v Richmond Adult Community College [2008] ICR 431. In particular she referred to the Judgment of Rimer LJ at paragraphs 32 and 33, where he makes it plain that evidence relating to the relevant time is what must be focused on, and that it is not legitimate to take subsequent events into account when considering the question of whether or not a person was disabled when the alleged discrimination took place.

1. Finally, Ms Stobart submitted that the Tribunal had erroneously and unfairly rebuked the Respondent for not having made further enquiries of the General Practitioner. It was not for them to do so or, indeed, to lead him in evidence.

1. In response Mr Whelan submitted that, at best, the Claimant's evidence was of how he hoped matters would work out. He hoped, as at 24 March, that he would be able to return to work. His evidence went no further than that.

1. He accepted that Dr Fraser's report of 4 March was to the effect that there was signs of imminent improvement but it was, he sought to persuade, important to recognise that the Employment Judge felt that the Claimant was impaired and that that was a matter for the Employment Judge, not for medical opinion (see SCA Packaging Ltd v Boyle.

1. Initially Mr Whelan accepted that the condition of a Claimant at the date of the hearing could be irrelevant, but only after having been referred to the passage from Rimer LJ's Judgment to which I have just made reference; he then appeared to accept that such evidence was wholly irrelevant. Mr Whelan referred to the test for perversity as explained at paragraphs 93 and 95 of the case of Yeboah v Crofton [2002] IRLR 634, and stressed that it was a high test to be overcome.

1. Overall the Employment Judge had, he submitted, been entitled to make the findings that he did and the appeal should be refused.

1. Turning to my decision, I have no hesitation in upholding this appeal. The question for the Tribunal was whether the Claimant had established that he was disabled within the meaning of s.1 of the Disability Discrimination Act 1995, as at 24 March 2010. That is, on the facts found, had the Claimant shown that, as at that date, he was suffering from a condition or impairment which had a substantial and long-term adverse effect on his day-to-day activities.

1. It was only open to the Tribunal so to conclude if it was demonstrated that the effect of the Claimant's concussion, and the symptoms to which it gave rise, were such as to have a substantial adverse effect on his day-to-day activities and that the likelihood was that they would last at that level until November 2010, that is 12 months at least from the date of his injury.

1. The onus lay on the Claimant, not on the Respondent. The Tribunal was quite wrong to criticise the Respondent for failing to make further enquiries of the General Practitioner. In that respect alone, the Employment Judge misdirected himself. Further, the Employment Judge was obliged to analyse, on the facts found, both elements of the test for disability. He did not properly analyse the first part, namely the nature and extent of the effect on the Claimant's day-to-day activities, a question about which was plainly raised by the doctor's view that even as at 24 March, the Claimant could have done some, although not a full day's work.

1. So far as the second element was concerned, the length of time over which the symptomotology would persist, the Employment Judge required to look at the factual basis, as to be found in the General Practitioner's report of 4 March. It was that the Claimant was likely to be fit for work within a few months. That is, even if he was experiencing a substantial adverse effect on his day-to-day activities at that time, that was not going to persist for very much longer and was certainly not going to persist, on the General Practitioner's view of the appropriate prognosis until November 2010.

1. I agree that there was no basis on which the Employment Judge could properly infer that the General Practitioner meant that there was likely to be a 12 month period of impairment. Indeed, his report was, as above indicated, to contrary effect. It could not be taken from his reference to the Disability Discrimination Act, that he had had regard to the specific provisions of the statutory requirements and/or guidance.

1. I am readily persuaded, regarding that matter, by the argument advanced by Ms Stobart. There was no indication that the doctor had any awareness of the legal test and it was not, in any event, for him to answer the legal question. Even if he had had such awareness, the question in law at the end of the day was one for the Employment Judge, not for the doctor.

1. Finally, the Tribunal had no business making any findings about the Claimant's condition as at the date of the hearing, or indeed having regard to it at all. The Employment Judge fairly and squarely fell into the trap of which clear warning was given by Rimer LJ in the McDougal case, particularly at paragraphs 32 and 33, to which I have already referred.

1. I am accordingly satisfied that, on the evidence led and the facts found, the only conclusion open to the Employment Judge was that the Claimant was not a disabled person at the relevant time. I will accordingly issue an order upholding the appeal and finding that the Claimant was, as at 24 March 2010, not a disabled person within the meaning of s.1 of the Disability Discrimination Act 1995.