Meaning of Disability
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Click on the case name below to be taken to a summary.
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College of Ripon & York St John v. Hobbs [2005] IRLR 185
Dunham v. Ashford Windows [2005] IRLR 608
Hewett v. Motorola Ltd [2004] IRLR 545
Kirton v. Tetrosyl Ltd [2003] ICR 1237
Mowat-Brown v. University of Surrey [2002] IRLR 235
Rugamer v Sony Music Entertainment UK Ltd [2001] IRLR 644
Ekpe v. Cmnr. of Police of the Metropolis [2001] IRLR 605
Goodwin v. Patent Office [1999] ICR 30
Vicary v. British Telecommunications plc [1999] IRLR 680
Condition
Muscle fasciculation; muscle cramps
Issue
Meaning of disability
Decision
EAT upholds tribunal decision that the applicant’s dysfunction was sufficient to bring her case within the expression of “physical impairment” even though the medical evidence was that there was no organic disease process causing the symptoms described by the applicant.
Principle
There is nothing within the Act or Guidance which requires any rigid distinctions to be made between an underlying fault, shortcoming or defect of or in the body on the one hand, and evidence of the manifestations or effects thereof on the other. The Act contemplates that an impairment can be something that results from an illness as opposed to itself being the illness. It can thus be cause or effect.
Condition
Severe reading and writing difficulties.
Issue
mental impairment.
Decision
On a preliminary issue as to whether the claimant was disabled, the tribunal had received a report from a consultant educational psychologist which showed that the claimant had generalised learning difficulties causing a cognitive or mental impairment. However, the tribunal held that the claimant had not established a specific mental impairment or clinical condition. The EAT allowed the claimant’s appeal.
Principle
There is a clear distinction between a mental impairment consisting of learning difficulties or a mental handicap, and mental illness. There is no requirement to establish a clinically well recognised illness in a case which is not based on mental illness at all. The first three routes sset out in the EAT’s judgment in Morgan relate to proof of mental illness, but there must be a fourth route by which a claimant who bases his case on learning difficulties can seek to establish a mental impairment, otherwise claimants with what may be very serious effects on their functioning generally or in a specific area of function would be excluded from the scope of the Act.
The tribunal also erred in relying on the fact that the claimant’s expert was a psychologist and not a medical practitioner. Although in the case of mental illness medical evidence is likely to be needed, in a case of learning difficulties there is no reason why the essential evidence which establishes the nature of the claimant’s condition should not be provided by a suitably qualified psychologist.
Condition
Asperger’s Syndrome.
Decision
The tribunal accepted that the applicant had a clinically well recognised mental disorder with a long term adverse effect, particularly on “his ability to participate in human interaction, social relationships and communication”. However, it dismissed his complaint because those matters were not listed in para 4 of Schedule 1 to the Act and they were therefore not matters which it was entitled to take into account.
The EAT allowed the applicant’s appeal. Ability to understand for the purposes of para 4(1)(g) of Schedule 1 was not limited to an ability to understand information or instructions.
Principle
A broad approach to the concept of “understanding” should be taken. The tribunal’s approach to the concept of understanding failed to acknowledge that someone who has difficulty in understanding normal social interaction and/or the subtleties of human communication can be regarded as having their understanding affected.
Condition
Prostate cancer/Urinary incontinence.
Issue
Progressive conditions
Decision
Court of Appeal decide that the appellant, who suffered urinary incontinence as a result of a standard operation for prostate cancer, was disabled even though the incontinence was static and did not constitute a substantial adverse effect.
Principle
Progressive conditions are dealt with in paragraph 8(1) of Schedule 1 to the Act:
Condition
Multiple Sclerosis
Decision
The EAT dismissed the applicant’s appeal against a finding by the tribunal that his case did not fall within the definition of “progressive conditions” in para 8(1) of the Act.
The medical evidence showed that the applicant was not presently disabled by the condition and the tribunal was not satisfied that any of the functions set out in para 4 of Schedule 1 of the Act had been affected to any substantial extent by his condition.
Furthermore, the medical evidence did not support a case that it was more likely than not that the applicant’s condition would deteriorate so that it would have a substantial adverse effect on him in the future.
Principle
It is not enough for an applicant to establish that he has a progressive condition. He must also establish that it is more likely than not that at some stage in the future he will have an impairment which will have a substantial adverse effect on his ability to carry out normal day to day activities.
How the applicant does this is up to him. In some cases, it may be possible to produce medical evidence of the likely prognosis. In other cases it may be possible to discharge the onus of proof by statistical evidence.
Condition
Functional overlay
Decision
The EAT held that the tribunal had not erred in finding that functional overlay - which appeared to be the only explanation for the restriction of the applicant’s movements and activities - was not a physical impairment within the meaning of the definition in the Act.
Further, the tribunal did not err in finding that the applicant did not have a mental impairment since there was no clear evidence that the applicant had a clinically well-recognised illness.
Further, the tribunal did not err in finding that the applicant did not have a mental impairment since there was no clear evidence that the applicant had a clinically well-recognised illness.
Principle
The dividing line between physical and mental impairment depends on whether the nature of the impairment itself is physical or mental, rather than on whether a physical or mental function or activity is affected.
Satisfactory medical evidence of a diagnosed or diagnosable clinical condition or other mental disorder of a recognised type is required to meet the statutory threshold for establishing mental impairment.
The tribunal is not required to conduct a free-standing inquiry of its own, and it is not required to attempt to obtain further evidence beyond that which the parties have placed in front of it.
Condition
Wasting in muscles of right hand
Issue
What is a normal day to day activity?
Decision
The EAT allowed an appeal against the tribunal’s ruling that the applicant’s impairment did not have a substantial effect upon her normal day to day activities.
Principle
The tribunal had wrongly focused on what the applicant could still do, rather than what she could not do (eg she could carry shopping but not heavy shopping; she could scrub pans if she adapted her grip; she could still apply make up if she used her left hand).
The tribunal had also erred in finding that putting on make up and putting rollers in her hair were not normal day to day activities because they were exercises carried out almost exclusively by women.
In considering what is a normal day to day activity, the antithesis for the purposes of the Act is between what is normal and what is abnormal, judged by an objective population standard. “In short, putting rollers in hair is undoubtedly a normal day to day activity, even though a majority of people may not do it”.
Condition
Paranoid schizophrenia
Decision
EAT hold tribunal was wrong to conclude that applicant was not disabled simply because he was able to cope at home. A close scrutiny of the employer’s case would inevitably have led them to the conclusion that the applicant was simply unable to carry on a normal day to day conversation with work colleagues.
Principle
EAT gives general guidance to tribunals on proper approach to deciding ssues of disability
1. With social legislation of this kind, a purposive approach to construction should be adopted
2. Issues should be clarified at early stage of proceedings
3. Reference should always be made to any relevant provision of the Guidance or Code
4. If doubt exists as to impairment condition in mental illness cases is it a clinically well-recognised illness?
5. In order to constitute an “adverse effect”, it is not the doing of the acts which is the focus of attention but the ability to do them. The focus of attention required by the Act is on the things that the applicant either cannot do or can only do with difficulty, rather than on the things that the person can do
6. “Substantial” means clearly more than trivial
Condition
Upper arm condition resulting in loss of strength
Decision
EAT hold that tribunal decision that applicant’s impairment did not have a substantial adverse effect on her ability to carry out normal day to day activities was perverse in circumstances where the evidence was that the applicant was unable to prepare vegetables, cut meat, carry saucepans full of water, file her nails etc.
Principle
The Guidance will only be of assistance in marginal cases.