On appeal

Continuing
our series on the implications of recent significant cases, Charlotte Hamer,
professional support lawyer in the employment pensions and benefits group at
international law firm Stephenson Harwood, looks at the issues

Defining
impairment

McNicol
v Balfour Beatty Rail Maintenance Ltd (2000) Court of Appeal – unreported at
present

n
This Court of Appeal case considers the definition of impairment in Section 1
of the Disability Discrimination Act 1995 (DDA) and the evidence necessary to
demonstrate an impairment for the purposes of the DDA.

Section
1 of the DDA provides that "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". Schedule 1 defines a
mental impairment as a "clinically well-recognised illness".

The
case

McNicol
worked as a trackman for Balfour Beatty Rail Maintenance Limited and brought a
claim for disability discrimination in October 1998, alleging that his employer
had not made "reasonable adjustments". In October 1995, he had driven
over a pothole and was jolted upwards. He reported a continuing injury to his
back and lower neck and went off work from the date of the incident and did not
return. McNicol categorised his injury as a compression injury to his spine
which left him disabled.

The
question of whether or not McNicol had a disability within the meaning of the
DDA was considered at a preliminary hearing. At a previous directions hearing,
McNicol made it clear he was claiming on the basis of a physical impairment.

The
first report

In
his first report, prepared for personal injuries proceedings, the employer’s
expert could not explain McNicol’s continuing symptoms lasting more than a year
on the basis of organic pathology. He considered that a psychiatrist or
clinical psychologist’s opinion was required.

In
his extended reasons for ordering a preliminary hearing following the
directions hearing, the regional chairman said that where no physiological
causes could be found for the symptoms being reported, a possible psychological
cause is looked for. This was also true when considering the question of pain
and substantial adverse effect. However, in this instance, psychological causes
were not alleged.

At
the preliminary hearing, the employer’s expert updated his report following a
further examination. He said the symptoms reported by McNicol and the limitations
on his normal day-to-day activities were not the result of physical impairment.

When
concluding that McNicol did not have a disability for the purposes of the DDA,
the tribunal accepted the employer’s expert report and went on to consider the
question of "functional overlay", in that it was possible for someone
to suffer pain which has no physical cause. It considered, however, that
"there was no evidence before it of any functional overlay or of any
clinically well-recognised mental illness".

Separately,
the tribunal did not consider that McNicol had suffered a long-term adverse
effect on his ability to carry out day-to-day activities. It doubted the
credibility of McNicol’s evidence, particularly after being shown a secret
video made of him on the day before the hearing, which was inconsistent with
the allegations McNicol had made to the doctors and the tribunal. On appeal,
the EAT did not accept that functional overlay amounted to a physical
impairment.

When
considering the appeal, the Court of Appeal made it clear that ‘impairment’
should be given its ordinary meaning.

It
applied the reasoning in College of Ripon & York St John v Hobbs [2002]
IRLR 185, which stated that the DDA "contemplates (certainly in relation
to mental impairment) 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.
No rigid distinction seems to be insisted on and the blurring which occurs in
ordinary usage would seem to be something the Act is prepared to tolerate".

Tribunals
may also draw inferences from elsewhere in discrimination law. In this case,
the Court of Appeal said the essential question was whether there was evidence
from which reasonable inferences could be drawn that McNicol had a physical or
mental impairment, giving the word impairment its ordinary meaning.

What
is impairment?

The
Disability Rights Commission made representations to the hearing as it sought
clarification on the definition of impairment and the role of the tribunal. In
the Court of Appeal’s view, the burden is on the applicant to demonstrate their
impairment on the balance of probabilities. It is not for the tribunal to
obtain evidence or ensure the parties have obtained adequate medical evidence.
It also considered that directions hearings should be held to clarify the
issues and the nature of the evidence to be adduced.

McNicol
lost his appeal because the Court of Appeal considered there was no error of
law on the part of the tribunal when it had concluded McNicol did not have a
disability for the purpose of the DDA.

This
case highlights two points which were also made clear by the Court of Appeal.

Applicants
need to make clear the nature of their impairment. McNicol was aware from the
expert’s report that it was not considered that he had a physical impairment
and that psychological causes should be considered. Nevertheless, he appears to
have maintained that he was pursuing his claim on the basis of physical
impairment.

This
leads on to the second point concerning the issue of obtaining sufficient
medical evidence. It is not always necessary to have medical evidence in order
to succeed in a DDA claim and it is for the tribunal to ascertain whether or
not an applicant is disabled. However, the Court of Appeal considered that
"both parties obtaining relevant medical evidence on the issue of
impairment" is of "crucial importance". McNicol did adduce
evidence, but from a general practitioner specialising in occupational health,
who could not add to the question of any psychological impairment and had
himself referred McNicol to a specialist.

Tribunals
are increasingly moving towards the instruction of joint experts, as per Hobbs.
Parties should carefully consider whether this is the most practical way of
resolving the question of disability.