Appeal No.EAT/0556/03/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 August 2003

Before
HIS HONOUR JUDGE ANSELL
LORD DAVIES OF COITY CBE
MR G LEWIS

MR DAVID COX	APPELLANT

BRITISH TELECOMMUNICATIONS PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	No appearance or 
representation by or on
behalf of the Appellant

(Mr J Cohen of the Employment Law Appeal Advice Scheme assisted the Appeal Tribunal) 

HIS HONOUR JUDGE ANSELL

1	This preliminary hearing was pursuant to chambers leave given by Judge Prophet in July against a Decision of the Bristol Tribunal, who heard the case on 6 May and gave a decision on the 7th,  dismissing an application under the Disability Discrimination Act, after dealing with the preliminary issue of whether the Applicant was disabled within the meaning of the Act.  They also decided to impose a Costs Order of £350.  

2	The Applicant has not attended today.  There was a message received yesterday that he had back trouble, and, indeed, back trouble is a significant part of this case.  The associate in this office tried to phone him back but was unable to do so.  Mr Cohen of ELAAS has represented him today and we allowed him to make submissions, and indeed we are very grateful to him for presenting the case very clearly, but one of the factors we bear in mind is that Mr Cox is not here today for, in our view, no apparent good reason.  

3	The reasons given by the Tribunal were certainly brief.  They dealt in paragraphs 2, 3 and 4 with the impairment issue.  Obviously we have to bear in mind that there is the balance to be drawn between there being sufficient reasons so that someone knows why they have won or why they have lost, as compared to not expecting there to be, as it were, a detailed judgment that one would expect after a Judge had been dealing with the case.

4	He had been employed as a payphone engineer and following an accident at work, he had been left with problems with his lower back, and there was a degenerative condition.  The job itself was physically quite demanding and involved a certain amount of heavy lifting, and the Occupational Health Practitioner advised the employers that for a period of time he should not carry out strenuous physical duties.  Various alternative jobs were considered and explored.  
5	For about two years after he returned to work in 1999 he was involved in job shadowing opportunities, and then in 2001 he was allowed to go on to a BTEC course, with a view possibly to going into the Respondents’ planning office, and he did a combination of office work and the BTEC course for a year.  He did not in fact continue the second year as he was no longer sponsored, and he was asked to return to operational duties and the Respondents were keen for him to find other jobs with their large organisation.  

6	Eventually, however, he applied for an early leaver payment and accepted it and in fact left the employment on 22 November.  Although the application did not make it clear, it seems that the substance of the claim under the Act was the Respondents’ refusal to allow him to complete the second year of that course and whether that was a failure to make appropriate adjustments in respect of his condition.  

7	There were before the Tribunal a whole series of reports.  There were some reports from the Applicant’s own doctor in relation to the original personal injury claim, and then more recently a series of reports from the Occupational Physician.  The first complaint that is made by Mr Cohen is that at the end of those reports, there are paragraphs where the physicians give a view, in their view, as to whether or not the Appellant falls within the Disability Discrimination Act in terms of the substantial adverse impairment. In Vicary -v- British Telecommunications [1999] IRLR 680, this Court made it clear that the issue was not one for expert witnesses to give their view about the adverse effect, but was one for a Tribunal to come to its own conclusion, based on medical evidence yet Mr Cohen argues the Tribunal in this case have relied on those conclusions as well as the substance of the medical report.  The Decision said this, that, very briefly:
 “The reports of five medical practitioners are before us”

 and later on:
“On the basis of all the evidence before us we find the adverse effect of the applicant’s physical impairment is not substantial.”

8	We are not satisfied that the Tribunal did fall into error in that case.  The Vicary decision was a wholly different situation where Dr Macaulay in that case actually gave evidence before the Tribunal and there was substantial evidence about Dr Macaulay’s experience under the Disability Discrimination Act and the fact that she had gone to a number of seminars on the subject.  The overall impression in that case was that they had paid much too much attention not only to Dr Macaulay’s factual findings but to the opinions that she had expressed before the Tribunal.  This is not the case here and it seems to us that the Tribunal quite properly referred to evidence as opposed to the conclusions of the doctors, and we do not find that they fell into the trap that was suggested that they may have fallen into, in the light of Vicary.

9	The second complaint is that the Tribunal did not make reference to the statutory guidance, which is contained in the Schedule to the Act, Schedule 1 in particular, which sets out guidance as to long term effects and impairment in relation to carrying out normal day-to-day activities.  Whilst it is always advisable for Tribunals to, if possible, refer to that guidance, we are certain from the comments of the Tribunal in this case that they did in fact have that guidance in mind, in particular where they refer to any problems that the Applicant had in relation to heavy lifting, and digging the garden, and possible use of a vacuum cleaner.  That seems to us to contrast with the normal day-to-day activities which are set out in paragraph 4 of the guidance, and we cannot see any substance in that complaint.

10	The other matter is a failure to make it clear as to which aspect of the Appellant’s evidence in relation to his activities they accepted or rejected.  Again, we are not persuaded by that argument; as we have already pointed out, they made reference to the limited impairment that he had in terms of his heavy activities, and by inference accepting that his normal day-to-day activities were thereby not impaired.  

11	We are, therefore, not satisfied that there was any error on the part of the Tribunal.  Obviously, slightly fuller Reasons, in an ideal world, would have been an advantage, but we are satisfied that there was a basis within the Tribunal’s Decision for someone to know why they have won or lost on this particular issue.  

12	A further complaint was made in relation to the award of costs of £350 by the Tribunal referred to, having considered all relevant matter, having previously indicated that they were dealing with the matter on the basis of unreasonable behaviour.  Again, not as full as Reasons as one might have seen in other judgments, but in our view sufficient for somebody to know why they have won or why they have lost.  The background here was clearly of overwhelming medical evidence supporting the Respondent’s case, and that justified the costs decision.  Accordingly we will not allow this matter to proceed further. 

Mr Cohen’s status was amicus rather than representation, and again we repeat that we are very grateful to him for the excellent way he presented the matter.