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Appeal No. EATS/0065/02

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH EH3 7HF

                                                                                                                At the Tribunal

                                                                                                                On 16 May 2003

Before

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

MR A J RAMSDEN

MISS A MARTIN

 

M                                                                                                                          APPELLANT  

CAPITA BUSINESS SERVICES LTD                                                             RESPONDENTS

Transcript of Proceedings  

JUDGMENT

                                               APPEARANCES

For the Appellant

 Mr D O’Carroll, Advocate

Instructed by- Govan Law Centre, 47 Burleigh Street, GLASGOW   G51 3LB

For the Respondents

 Mr D Strang, Solicitor

Of- Messrs Brechin Tindal Oatts, Solicitors, 48 St Vincent Street, GLASGOW   G2 5HS

 

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1.             This is an appeal from the Employment Tribunal sitting in Glasgow on 27 June 2002, by the applicant, Mrs M. The Employment Tribunal concluded unanimously that she was not a disabled person in terms of the Disability Discrimination Act 1995 (“The 1995 Act”) and consequently that her complaint of discrimination on disability grounds against the respondent, Capita Business Services Ltd, was dismissed, although a further claim in respect of unfair dismissal was to proceed.

2.             The procedural history which led up to that hearing must be considered. There were questions supplied by the respondent to the applicant under an order dated 16 January 2002, to which the applicant, who was then unrepresented but assisted by a friend, a Mrs B, gave answers. It is plain that those answers are full and reasoned and, so when we say that she was not represented, we are not seeking in any way to detract from the fact that this is not a case in which the applicant was wholly unassisted, not least, of course, because she had the benefit of medical advice. 

3.             The question that was asked relevant to these proceedings was the first question:-

“1.           Given that the applicant claims disability discrimination, what physical or mental impairment did she suffer from which she claims is the basis of her disability?”

And the answer was that the applicant suffers from hypothyroidism and tinnitus.

In question 3 she was asked;

“3.           What everyday activities does the Applicant state were adversely affected by that impairment?”

And she set those out in answer to question 3, adding that in August 2000, she began to experience the following:-

“Tiredness, weight gain, migraine headaches, pain in joints and muscle cramp, visual disturbances such as blurred vision, inability to focus and dry gritty eyes, hair loss from head and eyebrows, difficulty in swallowing/hoarseness, dizziness/palpitations, poor concentration spans, sleeplessness, extreme sensitivity to noise and  heat intolerance.”

4.             An appointment for directions was held before a Chairman, not the Chairman who subsequently heard the matter, on 24 January 2002. This was a hearing for directions requested by the solicitors for the respondent, and they were present at the hearing as was Mrs B, the applicant’s friend. The solicitor representing the respondent was the same solicitor, Mr Strang, who subsequently represented the respondent at the hearing and before us today. The Chairman recorded in his Note of the appointment for Directions, dated 5 February 2002, that both representatives agreed that a preliminary hearing could be arranged to deal with the issue, given that the respondent confirmed that it was not conceded that the applicant had a qualifying disability. The Note continues:-

“Mrs B confirmed that the applicant had complained of two separate disabilities, namely hypothyroidism which was her major complaint, and also tinnitus.  The applicant agreed that she would be willing to attend a medical examination by a specialist/s appointed by the respondents.”

5.             The Chairman concluded his Note, which effectively stands by way of an Order because there was no separate Order, so far as can be seen:-

“I advised that the case will be listed for two days to allow a preliminary hearing to take place to determine if the applicant has a disability within the meaning of the Disability Discrimination Act 1995. Mr Strang suggested that in the event of subsequent medical evidence should the respondents later concede that the applicant did have a disability the dates set aside for the preliminary hearing could be used for the hearing on the merits. His suggestion was accepted by Mrs B.”

6.               There then followed a further round of questions, the subject matter of an Order of 24 June 2002 and the first question was:-

“1.           Is the applicant’s position that her hypothyroidism constituted a disability within the meaning of the Disability Discrimination Act as at May 2001?”

which is the last date in which the applicant was in employment, she being dismissed on 18 May 2001. And then there were consequential questions:-

“2.           If so, what every day activities does she state were substantially adversely affected by her hypothyroidism?

3.             Over what period of time does she state that her normal every day activities were so affected?”

7.             There was then a second set of questions dedicated to the tinnitus:-

“4.           Is it the Applicant’s position that her tinnitus constituted a disability within the meaning of the Disability Discrimination Act as at May 2001?”

The answer by the applicant, no doubt again assisted by Mrs B, to question 1, relating to the hypothyroidism, was:-

“The Applicant had been diagnosed with hypothyroidism in October 2000 and was receiving medication for this condition. This is a lifetime condition requiring regular monitoring and controlling medication. Without medication, the Applicant would continue to suffer substantial adverse effects on her everyday activities.”

There is already a hint in that answer of the impact, to which we will refer later, of Schedule 1, paragraph 6 of the 1995 Act. The answer continues:-

“We believe that hypothyroidism is a disability in terms of the DDA 1995 Part 1 sl and satisfies the provisions in Schedule 1s2-1c and Sch1 s4-1a,c,e,f,g, s6-1 & 6-2.  We believe that this was the case in May 2001 when the Applicant was dismissed from her employment.”

Under the question relating to everyday activities, the applicant once again repeats, in seemingly more or less identical terms, the symptoms to which she was referring.

8.             In relation to the question about tinnitus, the answer was given:-

“The Applicant concedes that her tinnitus condition as at May 2001 was most likely an effect of her hypothyroidism and the tinnitus would not, in itself, qualify as a disability for the purposes of the DDA 1995.”

9.             When the hearing occurred, it was, as we have indicated, heard by a different Chairman and there is no specific setting out at the outset of the decision of the subject matter of the hearing, certainly none which, on the face of it, differs from the Order, which, as we have indicated, appears to us to be constituted by the Note signed by the previous Chairman on 5 February 2002, that there be a preliminary hearing to determine whether the applicant has a disability within the meaning of the 1995 Act. The decision commenced and we have, in the absence of paragraph numbering (which we would highly recommend to all Chairmen), numbered the paragraphs ourselves, paragraph 2 states as follows:-

“The applicant maintained that she suffers from hypothyroidism which constitutes a disability in terms of the Disability Discrimination Act 1995 (“the Act”).

And the Tribunal then say in the balance of paragraph 2:-

“A preliminary determination was held to determine if the applicant was a disabled person in terms of the Act.”

10.         On the face of it, the exercise is said to be the same exercise that was previously ordered, albeit that the Tribunal has rightly recited the applicant’s maintaining that she suffers from hypothyroidism and that hypothyroidism constitutes a disability within the Act.

11.         The Tribunal recites the fact that it heard evidence from Professor Connell, the distinguished Professor of Endocrinology at Glasgow University and Honorary Consultant Physician at the Western Infirmary in Glasgow. It seems that that evidence was called first, by agreement to suit, perfectly properly, his convenience. The Tribunal recites that evidence was given thereafter by the applicant, and the Tribunal continues in paragraph 3:-

“The applicant also proposed leading evidence from her daughter and from Mrs M a former work colleague.”

          The Tribunal continues:-

“As the respondents’ agent did not dispute the applicant’s evidence as to her complaint at any given time and the witnesses who were to give evidence would merely corroborate the applicant’s evidence, we did not consider any additional evidence would be of assistance to us in reaching a decision on the preliminary determination.

Put shortly, that means that, whereas the applicant was intending to lead further evidence, she was told that such would not be necessary and thus would not be welcome.”

12.         The Tribunal set out the medical history of the complaints and in the course of the decision makes reference to some of what, for these purposes, we shall continue to call the symptoms, of which she complained. In paragraph 6 she referred to the fact that she had difficulty as a result of her becoming particularly tired about the end of September 2000, and lacking energy in climbing the stairs to her flat and carrying her shopping, and became more or less confined to her flat. In paragraph 7 she referred to her dizziness, small sounds being magnified and her frequent perspiration. In paragraph 11 she referred to feeling very tired and gaining weight and being unable to swim or participate in exercise in the gym. In paragraph 17 she refers to the fact that she still, at the time of the hearing, felt hot and cold, had lost a stone in weight and that, although she had an improvement in her other symptoms, she still had a degree of tinnitus and deafness. In paragraph 18 the Tribunal recited from a report which the applicant had commissioned from a Dr Roy, who was not, in fact, in circumstances from which we have not sought to have explained to us, called as a witness. The Tribunal recited as follows:-

“In Dr Roy’s opinion “the main cause of the client’s disabilities at the time of her absence from her previous occupation was her hypothyroidism.  The symptoms she describes, mainly excessive fatigue, lethargy and balance impairment are attributable to her hypothyroidism.  The fact that these areas had improved in treatment would point to this as causation.” Dr Roy further states “It is possible that her tinnitus and hyperaccusis were attributable to hypothyroidism but this cannot be confirmed. It may simply have been coincidental.”  Hyperaccusis is sensitivity to sound. Dr Roy further stated “Her balance impairment may have been due to an inner ear problem “(labyrinthitis) or it could have been an effect of her hypothyroidism.””

13.         The Tribunal then turned to deal with the oral evidence which was helpfully given to it by Professor Connell. In paragraph 19 the Tribunal recites:-

“Professor Connell in his evidence stated the effects of an underactive thyroid are variable and indeed a person may have no symptoms where TSH (and that is measurement of thyroid as we understand it) is only marginally elevated. He was of the view that in October 2000 the applicant was suffering from mild hypothyroidism. Symptoms of fatigue, tiredness, sensitivity to cold, dryness of hair and skin, sleepiness and voice hoarseness may be present.”

            In paragraph 23 the Tribunal records:-

“Professor Connell’s opinion was that in Autumn 2000 some of the symptoms from which the applicant suffered may have reflected mild thyroid hormone deficiency, but appropriate treatment was carried out so that in May 2001 the applicant would have had no symptoms attributable to that hormone deficiency and therefore the symptoms which the applicant had in May 2001 when she was dismissed were not in any way attributable to hypothyroidism.”

            Again at paragraph 27 the Tribunal returns to this question and sets out as follows;-

“While the Tribunal was referred to various medical reports, articles and leaflets the only medical evidence which we heard was from Professor Connell.  He was clear in his view that the symptoms from which the applicant suffered in May 2001 were not attributable to hypothyroidism. Consequently in his view hypothyroidism was not the reason for the applicant’s absence from work on 18 May 2001 when she was dismissed.”

            The Tribunal concluded as follows:-

“The applicant has to establish her symptoms were attributable to hypothyroidism.  She has failed to produce sufficient evidence to satisfy us that this is the case. Her complaint under the Act cannot succeed and must therefore be refused.

If the symptoms from which the applicant suffered on 18 May 2001 were attributable to hypothyroidism then we would have had to consider whether the disability had a substantial and long term adverse effect on the applicant’s ability to carry out normal day to day activities. It is not necessary that we do so in this case as we have concluded the symptoms were not attributable to hypothyroidism.”

The Tribunal therefore concluded in paragraph 30 that the complaint under the Act was refused.

14.         Mr O’Carroll, Advocate, has now been instructed on behalf of the applicant and, indeed, it would appear counsel, although not Mr O’Carroll, had been previously instructed to settle the Notice of Appeal. The Notice of Appeal was a lengthy one, largely consisting of complaints that the Tribunal did not go on to consider the various issues under the Act which would have been necessary for it to consider had it decided that the applicant did have a relevant disability, namely questions of long-term effect and effect on normal day-to-day activities; but, understandably, Mr O’Carroll has indicated those grounds of appeal are superfluous, and that the nature of his case is that which is enshrined in the first two grounds. Although, in fact, the argument ranged wider than those two grounds, in circumstances to which we will refer, they are a good starting point for the basis on which his case is being put.  They read as follows, that the Tribunal:-

“1.           Misdirected themselves in law in stating at page 4, paragraph 26:-

“The first question for this Tribunal was whether the symptoms from which the Applicant suffered were attributable to hypothyroidism.”

The clinical name of the physical or mental impairment which the applicant has is irrelevant to the question of disability.”

That is summarised by Mr O’Carroll as being a reference to what he called the “label” to be attached to the impairment or, perhaps, rather, the cause of it.

“The proper questions for the Tribunal to consider were [the Notice of Appeal continues]:-

i.              Whether the applicant had symptoms arising from a physical or clinically well recognised mental impairment, and;-

ii.             Whether such symptoms had a substantial and long-term adverse effect on her ability to carry out normal day to day activities.

The Tribunal therefore applied the wrong test in determining whether the applicant was a disabled person within the meaning of Section 1 of the Disability Discrimination Act.

2.             The Tribunal erred in law in stating [and this is a reference to paragraph 28 of the decision]:-

“The Applicant has to establish her symptoms were attributable to hypothyroidism”.

The Applicant does not have to establish that the cause of her symptoms [was] attributable to any particular physical or mental impairment merely that they were attributable to physical or clinically well recognised mental impairment or impairments.

Accordingly the Tribunal erred in law in stating that it was a necessary condition for the applicant to succeed in her claim to be disabled within the meaning of Section 1 of the Disability Discrimination Act to show that her symptoms were attributable to hypothyroidism.”

15.         We should state quite clearly, for the purposes of this appeal, and, indeed for any other purpose, that Mr O’Carroll has made it absolutely plain that no reliance is being or is to be placed on the existence, in this case, of a mental impairment, whether clinically well recognised or otherwise. He and the applicant rest her case wholly on the basis of the existence of a physical impairment.

16.         The way that the argument has been put before us today, by reference to that ground of appeal, and, of course, there have been Skeleton Arguments put in, both by Mr O’Carroll and Mr Strang, to help to crystallise the submissions, is that the Tribunal asked the wrong questions, or, at any rate, has not completed the process which it may well have correctly begun. Quite plainly, Mr O’Carroll submits, the cause of an impairment is going to be an essential, certainly a material, evidential element both in establishing that what the impairment is and that it genuinely exists, before leading on to the question as to whether it is simply a transient and insignificant impairment, but that it is not an essential matter, certainly not a determinative one. 

17.         He has taken us, with Mr Strang’s help, on a tour of the relevant authorities.  He started with Goodwin v The Patent Office [1999] IRLR in which Morison P, in analysing section 1(1), set out a process which, he suggested, would be an easy way of approaching the Act.  Before we turn to the authorities we should set out the relevant provisions of the 1995 Act. Section 1 relates to the meaning of disability and the disabled person and reads as follows:-

“(1)          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.

(2)            In this Act “disabled person” means a person who has a disability.”

Schedule 1, quite apart from the guidelines which have subsequently been issued, is of considerable assistance in analysing the requirements of the Act and enabling understanding of them. Paragraph 1 of Schedule 1 is dedicated towards laying down separate guidelines and requirements in respect of mental impairment which, for the reason that we have indicated earlier, is of no relevance in these proceedings.

18.         Paragraph 2 addresses what is intended by the requirement that the impairment had long-term effects. Paragraph 4 is helpful assistance on the question of normal day-to-day activities and paragraph 5 relates to the possibility of the making of regulations to make provision in relation to the question of substantial adverse effects. Paragraph 6, to which we have earlier made reference, reads as follows:-

“(1)          An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.”

That is sometimes referred to as being a ‘deduced effect’ and would relate to a situation in which a condition is identified, which, in fact, has no effect on an otherwise disabled person because of medication or treatment which that person is undergoing but, where, after examination, it becomes apparent that but for that medication or treatment the patient would be suffering from relevant effects. It is not an easy task for the Tribunal to carry out, as is clear from, among other examples, the recent decision of Woodrup v London Borough of Southwark [2002] EWCA 1716 2003 IRLR 111, but is not directly in point before us today, in the circumstances which have occurred.

We turn then to Morison P’s helpful guidance, and in paragraph 26 of Goodwin he sets out the stages for the Tribunal to look at:-

“(1)          The impairment condition

Does the applicant have an impairment which is either mental or physical?

(2)            The adverse effect condition

Does the impairment: affect the applicant’s ability to carry out normal day-to-day activities in one of the respects set out in para. 4(1) of Schedule 1 to the Act, and does it have an adverse effect?

(3)            The substantial condition

Is the adverse condition (upon the applicant’s ability) substantial?

(4)            The long-term condition

Is the adverse condition (upon the applicant’s ability) long-term?

            He points out that there may be overlaps in respect of (3) and (4).

19.         On the face of it, the first question is what the Tribunal ought to have addressed when they had this preliminary hearing, given that there was a dispute about whether the applicant had a relevant disability. That issue does not address in terms the question of the cause of the impairment; it is simply a question as to whether the applicant has an impairment, and given that mental impairment does not arise in this case, the issue would be only as to a physical impairment. Mr O’Carroll submits that, in this case, the applicant was saying, albeit that she had been asked to pin down a cause or a condition to which the symptoms related, that she had an impairment or a series of impairments, namely the physical symptoms, balance impairment (which of course happens to use the very word in question, but is presumably otherwise dizziness), difficulty in climbing stairs, fatigue etc, which could amount to an impairment or impairments of a physical kind.

20.         We have then been referred to the balance of the relevant authorities, going on from there.  The first helpful decision to which we were referred is in Rugamer v Sony Music Entertainment UK Ltd and McNicol v Balfour Beatty Rail Maintenance Ltd two conjoined cases heard before the Employment Appeal Tribunal, and together reported in 2001 IRLR 644. Mr O’Carroll has referred us to paragraphs 32 to 34 of that decision in which Mr Commissioner Howell said:-

“32. That the identification of an ‘impairment’ for the purposes of the Act is a different thing from the causes that give rise to its being present, and also from its effects in terms of the limitations it places on a person’s functions and ability to carry out activities, is apparent not only from the structure of the legislation as above outlined and the summary in that guidance document, but also from the principal case in which the working of the Act has so far been considered by the Appeal Tribunal: Goodwin v Patent Office [1999] IRLR 4.”

And at paragraph 34, Mr Commissioner Howell continued:-

“‘Impairment’ for this purpose and in this context, has in our judgment to mean some damage, defect, disorder or disease compared with a person having a full set of physical and mental equipment in normal condition.  The phrase ‘physical or mental impairment’ refers to a person having (in everyday language) something wrong with them physically, or something wrong with them mentally.  Given the apparent intention that the question of the presence of an ‘impairment’ is to be differentiated both from its cause, and from its effects in terms of a person’s functionality, the difficult dividing line between physical or mental impairment has in our judgment to depend not on whether a physical or mental function or activity is affected (a physical impairment may affect mental activities as well as physical ones, and vice versa) but rather on whether the nature of the impairment itself is physical, or mental.” 

In that case, the Tribunal concluded, and, it was held, was entitled to conclude, that albeit that the appellant in question had certain complaints, they did not amount to a physical disability, because they were satisfied that there was a psychological overlay, not itself amounting to a mental impairment, which was the explanation for the problem.

21.         That case was, in part, that is, in relation to only McNicol and not Rugamer, appealed to the Court of Appeal, which upheld the decision of the Employment Appeal Tribunal.  Mummery LJ, in the Court of Appeal ([2002] EWCA Civ 1074 [2002] IRLR 711), dealt with the relevant matters at paragraphs 17 to 19 and included in that passage approval of recent observations of Lindsay, P, in College of Ripon & York St John v Hobbs [2002] IRLR 185 at paragraph 32.  He said as follows:-

“17. The approach of the Tribunal should be that the term “impairment” in this context bears its ordinary and natural meaning.  It is clear from Schedule 1 to the 1995 Act that impairment may result from an illness or it may consist of an illness, provided that, in the case of mental impairment, it must be a clinically well-recognised illness.”

He said in paragraph 18 that he agreed with the recent observations of Lindsay P, which he sets out, and then at paragraph 19 he concludes:-

“It is left to the good sense of the Tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment within the stated affects.  Such a decision can and should be made without substituting for the statutory language a different word or form of words in an ambitious and unnecessary attempt to describe or to define the concept of ‘impairment’.  The essential question in each case is whether, on sensible interpretation of the relevant evidence, including the expert medical evidence and reasonable inferences which can be made from all the evidence, the applicant can fairly be described as having a physical or mental impairment.”

22.         The words of the Employment Tribunal in the case of College of Ripon, to which we have already made reference, were approved by Lindsay P at paragraph 30 in that case when the Tribunal had said:-

“In simple terms, we think it means that there is something wrong with the body as opposed to the mind.”

and he approved this.

23.         In those circumstances Mr O’Carroll submits that the Tribunal should not have found it determinative of the question as to whether the applicant was disabled that it was satisfied that the symptoms, of which the applicant was complaining in 2001, were not due to hypothyroidism. The position remained that there was, if the evidence of the applicant was to be accepted, as it seems it had been, at least arguably an impairment or series of impairments simply by virtue of the evidence she gave, or would have given, with regard to her physical difficulties. If those could no longer be ascribed to the cause of hypothyroidism, then the following possibilities would remain:-

(i)             that she was exaggerating the nature of those impairments.

(ii)           that they had a psychological or mental cause, not, as is conceded, falling within the Act. 

(iii)          that although they amounted to an impairment, they had, or would have, no material effect on her day to day activities and would have, particularly if there was no underlying cause or condition, no long term effects, but would be likely to clear up in time and perhaps already had cleared up.

He further submits that even though there was a conclusion that the symptoms as at April 2001 were not to be ascribed to hypothyroidism, the question implied by paragraph 6 of the Schedule 1, had not been answered by the Tribunal, namely, the deduced effect of the impairment which Professor Connolly himself had conceded, and accepted existed in, at any rate, a mild form, namely, the hypothyroidism, being inadequate operation of the thyroid, but for the impact of medication.

24.         In those circumstances Mr Strang sought to maintain that there was, nevertheless, sufficient, in the Employment Tribunal’s conclusion to justify a finding by it, albeit not said in terms, that the applicant did not have a physical impairment. He submitted that, without medical evidence, if an applicant was to be able simply to assert that the existence of physical handicaps or defects amounted to an impairment, the Act would have a far greater impact than it was intended to do, and would enable many to claim to be disabled, who were simply suffering from day to day ailments.

25.         We are satisfied that the Tribunal did not ask or answer sufficient questions. Mr O’Carroll has not sought to assert that the conclusion, to which the Tribunal came, is perverse or cannot be justified, not least given that there was only one set of medical evidence before it, called orally. It is plain in those circumstances that the Tribunal was entitled to answer the question that the symptoms, as at May 2001, were not due to hypothyroidism; but what it did not then go on to answer was, as we have indicated:-

(i)             whether the applicant, as at April 2001, did have an impairment not caused by hypothyroidism, or

(ii)           whether there was any deduced effect of the hypothyroidism.

26.          And, in those circumstances, it did not go on to deal with the question as to whether either an actual or deduced impairment had any material effect on normal day to day activities or any long term effect. It may well be that the Tribunal would have concluded that there was no disability in those circumstances by reference to paragraph 2, 4 and 6 of Schedule 1, but we are satisfied that, simply to give the short answer that the Tribunal did give, that the symptoms suffered by the applicant in April 2001 were not attributable to hypothyroidism, is not the same as saying, nor even purports to be, that as at April 2001 the applicant had no physical impairment or impairments. We agree with Mr O’Carroll that the issue of what the cause is of a physical impairment is always going to be of importance, and it may lead to the conclusion, if there be no apparent cause, that the impairment is not genuinely a physical one but a psychosomatic, or, possibly, to the question of whether there is any likely long term effect in those impairments, but it is not the same question, but a different and only an evidential one. We also agree with Mr Strang that it would be unfortunate if any conclusion to which we came discouraged the need for an applicant to adduce medical evidence, because, as we have indicated, without medical evidence it is extremely unlikely that someone who simply asserts that he is having some physical difficulty or other will be able to establish, even if he can support prima facie the existence of some physical impairment, the other requirements of the Act.

27.         Can we, or should we, in those circumstances, interfere with what we are satisfied is an incomplete decision by the Tribunal? Mr Strang has taken us, understandably, to the authorities which are still exemplified by Kumchyk v Derby City Council [1988] ICR 1116, which enshrined the proposition that, even if unrepresented below, but certainly if there has been some representation, an applicant should not be entitled to run, on appeal, a point whether of law or, for that matter, absent an application for fresh evidence on the usual principles, of fact, which was not run below, save in exceptional circumstances. We cannot operate as an appellate body, and the Tribunals cannot safely operate, as they do, so successfully throughout the country, if it is to be thought that someone automatically has a second bite of the cherry, or that the appellate body is going to be prepared, effectively, to sit as a Tribunal of first instance or allow a second hearing on grounds which could perfectly well have been raised and dealt with at the first instance. 

28.         Mr Strang also takes us to those authorities which emphasise that there is no need or cause for an Employment Tribunal to act as an inquisitorial body. We agree with that proposition. Clearly, an Employment Tribunal will want to assist an unrepresented litigant but for a Tribunal to take over the reins from the parties and nose out issues which neither party is apparently taking, is neither sensible, nor, in the event, does justice as between the parties.

29.         However, we conceive that to ensure that this Tribunal carried on from where it left off, having concluded that these symptoms did not result from hypothyroidism, and carried on to consider whether the symptoms themselves amounted to a physical impairment which otherwise qualify within the Act, is not to offend against either of these two propositions. What happened here was what the Tribunal did not do that which it had itself said it was going to do. The parties, of course, were assisted by the clarification of the issues as a result of the questions raised by the respondent.  The respondent plainly did want to know what condition, if any, was being relied upon as substantiating the symptoms of which the applicant was complaining. But, nevertheless, the order that was made was that the decision should be taken as to whether the applicant was disabled within the Act, not as to whether the symptoms, as of April 2001, were due to hypothyroidism, which, taken on its own, would not have been sufficient, as we have concluded, to lead anywhere in terms of a conclusion under the Act, without moving on to decide other outstanding issues, albeit shortly.

30.         Consequently, this is not a case in which a point was not taken, but it is rather a case where the hearing which was promised to the parties did not occur. The criticism might be made that the applicant did not object, did not rise to say that this is not what we thought we were here for. But we do not conclude that, unrepresented, the applicant should be criticised for that. This hearing was stated to be a hearing, which did not, in fact, take place. We can understand why it took place in the way it did. We can understand that the Tribunal followed, with the respondent’s guidance and, no doubt, enthusiastic backing, the answers which had emerged from the very sensible questions posed, but, in our judgment, it was still for the Tribunal to hold the hearing which it said it was going to hold.

31.         We are therefore of the view that we should not disagree with, or undo, the good work that has been done by this Tribunal, save that we should quash the conclusion that it reached at the end of the decision, that, in the circumstances, the applicant’s application for disability discrimination was dismissed. We conclude that the Tribunal should have moved on from the conclusion that it had reached, with the benefit of the medical evidence, in order to consider the further questions, namely, one, whether the physical symptoms, which were alleged, together or independently amounted to a physical impairment within the Act, and whether the unsymptomatic hypothyroidism itself amounted to an impairment within the Act, and then as to whether one or both of those impairments, if so found, had either actual or deduced effects which amounted to a disability; if, having followed the stages established by Morison P and the Schedule, a disability was found, then the next questions namely, was there unfavourable treatment and was there consequently discrimination, would have followed on.

32.         In those circumstances we propose to remit the matter for further consideration by the same Tribunal, and we do not accept the submission of Mr O’Carroll that it should be referred to a different Tribunal. We would be concerned if the work that has been done so far were wasted, and we are satisfied that the conclusions which have been reached so far, to which, as we have indicated, Mr O’Carroll has not been in a position to take any exception in any event, can and should now be built on in order to answer the balance of the required questions. In those circumstances and to that extent this appeal is allowed.