Appeal No.	 EAT/595/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 October 1999

Before
HIS HONOUR JUDGE J HICKS QC
MR P R A JACQUES CBE
MRS R A VICKERS

MR T I VATCHER	APPELLANT

KELLY SERVICES (UK) LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR D BRADSHAW
(of Counsel)
Instructed By:
Mrs P Duffy
Managing Consultant
The Employment Law Advice Centre
22 St Edmunds Road
Northampton NN1 5EH	

	JUDGE J HICKS QC:	Mr Vatcher was employed by the Respondent, Kelly Services (UK) Ltd, and brought a complaint against his employers of discrimination by reason of disability within the meaning of the Disability Discrimination Act 1995.  

1	The hearing before the Employment Tribunal which is the subject of the appeal to us was confined to the question whether Mr Vatcher was suffering from a relevant disability within the meaning of the Act.  The finding of the Tribunal was that he was not.

2	The disability advanced by Mr Vatcher was that he suffered from Tourette Syndrome and it was not in dispute that he was a sufferer from that syndrome which can take, in some cases, very severe and distressing forms including totally involuntary outbursts of obscene language and violent and equally involuntary muscular movements.  Fortunately in Mr Vatcher’s case the symptoms were very much milder than that.  He did not suffer from involuntary swearing.  He did not suffer involuntary movement of his limbs, apart from some evidence that occasionally the facial tic, which was the main symptom from which he suffered, did affect, he said, the movement of his head and that he also gestured with his arm.  As the Tribunal found what he was left with, so far as was significant, was involuntary facial grimaces and grunting from time to time.

3	The Tribunal heard evidence from Mr Vatcher and found that he was a highly intelligent, articulate and well spoken young man whose speech was clearly understandable and who, of course, because there is no mental impairment in Tourette Syndrome, himself clearly understood everything that was said to him.

4	In those circumstances and to summarise, because that is all that is necessary, the requirements of the Act, the Tribunal found that there was impairment from Tourette Syndrome, that it did affect Mr Vatcher’s normal day to day activities and that the effects were long term.  All those are requirements and all those were found in his favour, but there is a further requirement that the effect be substantial and on that issue, after a careful review of the evidence, the Tribunal came to the conclusion that in this case the effects were not substantial within the meaning of the Act and therefore that Mr Vatcher was not disabled for the purposes of the Act.

5	Mr Bradshaw who appears for Mr Vatcher today accepts, as in our view is plainly and unarguably right, that that conclusion is a conclusion of fact which it was open to the Tribunal to reach on the evidence.  Whether we or any other body would have reached the same or a different conclusion is neither here nor there, because our jurisdiction to interfere with the conclusion of the Employment Tribunal is limited to cases where they are in error of law, and there can be no error of law where they reach a finding of fact which was open to them on the evidence.

6	Mr Bradshaw seeks to raise a wholly distinct point.  He says that by virtue of Schedule 1, paragraph 3(1) of the Disability Discrimination Act 1995 a severe disfigurement is automatically substantial for the purposes of the requirements of disability.  That argument, of course, would itself raise a factual issue whether in this case there was severe disfigurement from the facial grimaces which the Tribunal found to be present, but the Tribunal cannot be in error in law in dealing with that if the matter was not raised before them, and we see no reason whatsoever for supposing that that was raised and argued, in the light of a full and careful set of reasons by the Tribunal which shows no reference to that point at all.  Had that point been raised clearly it would have been necessary to deal with it before turning to the more general factual issue of substantiality, because if substantiality is automatically imputed by the statute in the case of severe disfigurement, then a finding of severe disfigurement would dispose of the issue of substantiality.  There is no trace whatsoever of that in the reasons and there is no affidavit from Mr Vatcher or from his representative at the hearing before the Tribunal.  Mr Bradshaw who appears before us was not present then and in those circumstances we think it would be quite wrong to assume that the Tribunal failed to deal with such a relevant point, had it been raised.  We say nothing, of course, about the likelihood that if raised it could have been sustained because that is not a matter for us but we see no error of law in the decision of the Tribunal and in those circumstances we must dismiss the appeal.