Appeal No.	EAT/1479/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 March 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MRS T A MARSLAND
PROFESSOR P D WICKENS OBE

MR T D COOPER	APPELLANT

JAGUAR CARS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR R POWELL
(of Counsel)
Coventry Law centre
The Bridge
Broadgate
Coventry CV1 1NG	

	MR JUSTICE HOLLAND:     In and between 1990 and 1997 the Applicant, Mr Cooper, was employed by the Respondents, Jaguar Cars Ltd, as a sample layout inspector.  By an IT1 dated 8 October 1997 he made various complaints against his employers.  One such came for adjudication before an Industrial Tribunal sitting at Birmingham on 6 July 1998 and 2 September 1998.  In quite admirable Extended Reasons the Tribunal defined at the outset the issue that was before it.  It did so in these terms:

“1.  Mr D T Cooper, the applicant, makes several claims against Jaguar Cars Limited, the respondents.  The applicant claims that he was unfairly dismissed by the respondents on several grounds, and the respondents failed to provide him with a written statement of employment particulars.  The applicant also complains that he was the subject of unlawful discrimination arising from a disability contrary to the provisions of the Disability Discrimination Act 1995 (the Act).
2.  The respondents contend that the applicant was not dismissed.  In the alternative they say, if the applicant was dismissed, he was fairly dismissed.  The respondents also claim that the applicant did not suffer from a disability as defined in the Act and deny that they discriminated against the applicant contrary to the Act.
3.  The only issue considered by the tribunal which is the subject of this decision is whether or not the applicant suffered from a disability as defined for the purposes of the Act at the time of the termination of his employment.  The applicant says he did; the respondents say he did not.”

	The Extended Reasons then proceed as follows.  The Tribunal by such, recite first of all the evidence that it heard, particularly noting the expert evidence that had been put before it and the documentation relating to the medical history and condition of Mr Cooper.  It then goes on to find the facts of the matter and notes that he is suffering from a degenerative disease of the lumbar spine.  It notes further, that there is an overlay in terms of abnormal illness behaviour.  

	The Tribunal then turns to the law.  It recites such by reference to the Act in full and thereafter goes on to recite, again in full, the guidance that it had been given as to the operation of the Act.  All this is set out and serves to demonstrate that it had very much to mind not just the law, but every piece of guidance as to such, bearing in mind that this is a relatively new field for an Industrial Tribunal.  It then goes on to its decision.  The decision merits careful consideration.  First, by paragraph 24, it found as follows:

“24.  In considering whether or not the applicant had a disability at the time of the termination of his employment, the tribunal has taken into account the cumulative physical effects arising from his physical illness and the effect of abnormal illness behaviour.  In deciding the question before it the tribunal has taken into account all physical difficulties arising from his physical problem and the abnormal illness behaviour as amounting to physical impairment for the purposes of the definition of disability.”

	From that standpoint the Tribunal then tackles directly the issue that was before it, as raised by section 1 of the Act.  That section 1 (1) provides as follows:

“(1)  Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”

	It is to be noted that that simple provision is then expanded in Schedule 1.  All is set out at some length in the Extended Reasons.

	Turning back then to the way the Tribunal approached its decision, in paragraph 25 it made a finding that “the applicant’s physical impairment has a long term adverse effect on the applicant”.

	Then, in paragraph 26, it went on to define the crucial decision for the purposes of the matter before it.  It did so in these terms:

“26.  The tribunal has gone on to consider whether that adverse effect is a substantial effect on the applicant’s ability to carry out normal day-to-day activities.  ...”

	It acknowledged that it was not an easy decision to deal with, and it then went on to explain how it was going to deal with it.  In particular, it was going to take into account the guidance that it had earlier recited and it was also going to direct itself to consider what the officious bystander would regard as amounting to “substantial adverse effect on a person’s ability to carry out normal day-to-day activities”.  Thereafter it did precisely that and, in particular, it went through all the heads that are provided for in paragraph 4 (1) of the 1st Schedule to the Act, tackling seriatim the issues that are there raised, with an eye to assessing whether the long-term adverse effect could be said to be substantial.  It then concluded in these terms:

“34.  Having analysed the matter in this way, the tribunal has stood back and reminded itself of the statutory provisions, the Guidance referred to earlier in these Reasons, and the general tenor of the Guidance.  It has asked itself whether the applicant suffers from a disability as defined.
35.  The decision has not been an easy one for the tribunal because it considers the matter finely balanced.
36.  First, the tribunal has asked itself whether in respect of any of the heads referred to in paragraph 4(1) of the first Schedule to the Act and the other difficulties suffered by the applicant, the applicant was, at the time of the termination of his employment, suffering from an impairment which had a substantial adverse effect on his ability to carry out normal day-to-day activities.  The tribunal, having asked itself that question, answers it in the negative.
37.  The tribunal has then looked at the cumulative effect of each of the matters claimed by the applicant to amount to the substantial adverse effect on normal day-to-day activities.  The tribunal concludes that the matters relied upon by the applicant do not amount to a substantial adverse effect on his ability to carry out normal day-to-day activities.  The tribunal has looked at the applicant’s problems together, has looked at their effects on normal day-to-day activities individually and cumulatively, and considered whether the adverse effect on normal day-to-day activities was substantial.  In this respect the tribunal has reminded itself that a ‘substantial’ effect is one which is more than ‘minor’ or ‘trivial’.  The tribunal concludes that the effect on normal day-to-day activities of the applicant’s difficulties was not substantial.
38.  Having addressed the problem in this way, the tribunal has looked at the matter again in the round.  It has asked itself whether the independent bystander, taking into account the applicant’s physical problems and their effects (including those resulting from abnormal illness behaviour), would consider that at the time of the termination of the applicant’s employment the applicant was subject to an impairment which had a substantial and long term adverse effect on his ability to carry out normal day-to-day activities.  The tribunal answers that question in the negative.  At the relevant time the applicant did not have a disability for the purposes of the Act.”

	Thereafter, the Applicant, Mr Cooper, appealed against that finding.  That appeal has come before us this morning by way of a preliminary hearing.  It is our task to decide whether the Appellant has identified a point of law that would merit a further hearing, at which the Respondents would be represented, so as to enable this Tribunal to have the advantage of inter partes argument.  If we so find, then it is our duty to send the matter forward for that hearing.  If, on the other hand, we cannot discern a point of law, it is our like duty to dismiss the appeal.  It should be emphasised that this tribunal only has jurisdiction with respect to points of law.

	Turning back to the decision so far described in this judgment, it is manifest that the Appellant has a hard task.  The approach of this Tribunal to this issue certainly has been, on the evidence of its Extended Reasons, quite exemplary.  Not so, says Mr Powell in a courteous and firm address, on behalf of Mr Cooper.  He submits that those reasons do evince sufficient misdirections to justify a further hearing.  That is, he submits, that there is at least one, if not more, errors of law.  

	Turning to the points that he has raised, the first relates to part of the evidence which was to the effect that the Applicant, Mr Cooper, could walk for up to two miles.  In paragraph 13 of the Extended Reasons the Tribunal notes the evidence in these terms:

“The applicant can walk for up to about 2 miles, but in doing so experiences some pain.”

	In paragraph 29, dealing with the same evidence, the Tribunal said:

“... since he is able to walk for 2 miles, albeit with some discomfort.”

	Mr Powell submits that, on the face of it, the Tribunal misdirected itself as to what was experienced after walking that distance.  He makes a particular second point about expert evidence.  He submits that the Tribunal should have given more weight to the expert evidence that was put before it, and he draws attention to the fact that there is not any clear analysis of that evidence, rather the Tribunal approached the matter by reference to the evidence as to the activities of Mr Cooper, taking those activities from the guidance given in paragraph 4 (1) of the 1st Schedule.  He submits that there should have been more weight given to the expert evidence, not just that which was put before it orally, but that which came before it by way of medical reports.  He is also concerned as to whether the Tribunal properly directed itself when it sought, in the latter stages of its reasoning, to stand back from the matter and look at the evidence again, this time from an entirely objective standpoint.

	Finally, he draws proper attention to the fact that this is a field which is relatively novel for tribunals and in which, of necessity, guidance is so far short.  There is, it is true, the very powerful and helpful decision of this Tribunal in Goodwin v The Patent Office [1999] IRLR 4, but thus far, understandably, that is the limit of judicial guidance and he submits that this is another case which could properly go forward, so as to give this Tribunal more scope to give guidance to Employment Tribunals who have now to tackle these issues.  He will forgive us if we say that his best point was his last point.

	There is obviously a concern to give guidance to Employment Tribunals and certain it is, that if we had been able to discern and identify a point of law arising from this decision, then that last submission would have encouraged us to send this matter forward for an inter partes hearing.  His problem is that we are quite unable to discern any point of law arising in this matter at all.  The points that he has raised do not go to law, or if they do, it is entirely marginal and overall there is confronting him the exceptional care with which this particular Tribunal approached this issue, a care which allowed them properly to acknowledge that this was a marginal matter, but led them to the decision, carefully set out in our judgment, which decision is entirely, in our judgment, a matter for them as the industrial jury.

	Thus it is, that we are unable to accede to his submission.  We cannot discern a point of law and that leads us to dismiss this appeal.