Appeal No.	EAT/1386/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 January 1998

Before
HIS HONOUR JUDGE C SMITH QC
MISS C HOLROYD
MRS T A MARSLAND

MR J QUINLAN	APPELLANT

B & Q PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY
OR REPRESENTATION
ON BEHALF OF
THE APPELLANT	

	JUDGE C SMITH QC:     This is an application by Mr Quinlan for leave to proceed to the full hearing of his appeal against the decision of an Industrial Tribunal held at London (South) on 1 October 1997, when the Industrial Tribunal unanimously decided that the Applicant was not a person with a disability, for the purposes of the Disability Discrimination Act 1995 so that he was disqualified from bringing a complaint under the Act and accordingly, dismissed his complaint.

	The Appellant has not appeared before us today.  We understand that legal aid has been refused.  In those circumstances we have, of course, carefully considered the Notice of Appeal and the argument set out in that document and we have carefully considered the decision of the Industrial Tribunal and, also the documents in connection with the application for a review and the reasons given by the Industrial Tribunal for refusing a review, as set out at pages 6 and 7 of the bundle.

	We have also, of course, looked at and considered the Originating Application and the Notice of Appearance by the Respondents.  We have reminded ourselves that, if there is any arguable point of law, the Appellant should be allowed to proceed to a full hearing.

	As appears from the decision the issue before the Industrial was whether the Applicant had a physical impairment within the meaning of Section 1(1) of the Disability Discrimination Act 1995, which has a substantial and long-term adverse effect on his ability to carry out his normal day-to-day activities.

	The Industrial Tribunal carefully set out the issue and rehearsed the law, accurately in our judgment, at paragraphs 3 - 5 of the Extended Reasons.  They noted that there was a definition of normal day-to-day activities in Schedule 1, paragraph 4(1) to the Disability Discrimination Act 1995, which provides a definition of normal day-to-day activities.  The Industrial Tribunal cited the relevant part of the paragraph in their reasons as follows:

“An impairment is taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following - mobility, manual dexterity; physical co-ordination; and ability to lift, carry or otherwise move everyday objects.”

	We pause to note it was that last phrase that was of relevance here, namely the words “an ability to lift, carry or otherwise move everyday objects”.

	The Industrial Tribunal then went on in paragraph 5 to deal with a question as to whether the fact that the Applicant had been registered as disabled had the result that he should be deemed to have a disability and hence to be a disabled person, and they noted that it was necessary that a person’s name should be in the register of disabled persons, both on 12 January 1995 and on the date when this paragraph comes into force, that is to say Schedule 1, paragraph 7, being 2 December 1996.  

	So it was against that background that they came to consider the facts and they made their findings of fact in paragraphs 6 - 10 of the Extended Reasons.  In paragraph 7 they noted that, unfortunately, the Applicant in 1987 had undergone open heart surgery and they also noted that he was registered disabled on 21 March 1996.  They found, as a fact that he was able to lift everyday objects and his condition did not have any effect on his mobility or his manual dexterity, so they made a finding of fact there that the Applicant was able to lift everyday objects.  In paragraph 10 the Industrial Tribunal found that “The Applicant is unable to carry out heavy lifting, such as the 200 litre bags of stock required of him in his job of general assistant.  To do so would be dangerous for his health”.

	We should mention that the Applicant had been employed on 10 January 1997 as a general assistant at a garden centre by the Respondents, B & Q Plc, and the effective date of termination was just seven days later, on 17 March 1997, due to the inability of the Applicant to carry out the lifting tasks at the garden centre and therefore, his incapability of carrying out the job.

	So it was in those circumstances that the Industrial Tribunal came to consider, and reach their conclusions with regard to the issue which they had to determine, as to whether he did fall within Section 1(1) of the 1995 Act.  They first of all held that he was not deemed to be disabled because he was registered on 21 March 1996, whereas he had to be registered both on 12 January 1995 and on 2 December 1996, to fall within the meaning of Schedule 1, paragraph 7.

	The Industrial Tribunal then turned on to consider whether he had a disability within the meaning of Section 1 and Schedule 1, paragraph 1 of the Act and they concluded, having had regard to the medical letters that he submitted in support of his claim, and to the Applicant’s evidence which had been given before them that he had a physical impairment, but that it did not have a substantial long-term effect on his ability to carry out normal day-to-day activities, since they concluded that he was able to lift, as they had found as a fact in paragraph 9, everyday objects.  So that clearly they reached the conclusion that he was able to lift everyday objects within the meaning of that expression within Schedule 1, paragraph 4(1).

	There was then an application for a review and, it was submitted in support of the review that the Industrial Tribunal should pay regard to the medical evidence from a Dr Gill, the Applicant’s Consultant, which it was submitted should have led the Industrial Tribunal to the conclusion that, on the basis of this opinion it must be that there are a range of everyday objects which the Applicant could not lift.

	The Industrial Tribunal, in considering the review, first of all said that these matters had been fully canvassed at the original hearing, but then went on to make clear in paragraph 4 of its reasons on the review, that the Industrial Tribunal had, as they are required to do under the 1995 Act, considered the Guidance on matters to be taken into account and they quoted the relevant paragraph of the Guidance, that is to say the Guidance issued under the Act, to which an Industrial Tribunal must pay regard when deciding any issue under the Act, and in particular, the Industrial Tribunal quoted paragraph C18 of the Guidance, which is in these terms:

“Ability to lift, carry or otherwise move everyday objects.  Account should be taken of a persons ability to repeat such functions or, for example, to bear weight over a reasonable period of time.  Everyday objects might include such items as books, a kettle of water, bags of shopping, a brief case, an overnight bag, a chair or other piece of light furniture.”

	And then examples were given:

“It would be reasonable to regard as having a substantial adverse effect -
- inability to pick up objects of moderate weight with one hand;
- inability to carry a moderately loaded tray steadily.
It would not be reasonable [says the Guidance] to regard as having a substantial adverse effect -
- inability to carry heavy luggage without assistance;
- inability to move heavy objects without mechanical aid.”

	So it was on that basis that the Industrial Tribunal reached their conclusion in the light of the medical evidence before them; in the light of the definition in the 1995 Act; in the light of the Guidance; in the light of the definition, in particular, of everyday objects and the guidance given in relation to everyday objects, which appears to us not to be linked to the particular employment of the Applicant, but a matter to be considered as a matter of principle, so to speak, without regard to the particular duties under any particular employment.

	The Industrial Tribunal, in our judgment, was entitled to conclude, as a finding of fact, that the Applicant was able to lift everyday objects within the definition, despite the fact that because of his unfortunate open heart surgery, he was quite unable to carry out heavy lifting because to do so would be dangerous for his health.

	In our judgment this was a decision which was ultimately a question of fact for the Industrial Tribunal to decide.  We bear in mind, of course, that the legislation is relatively new and had we thought that there was any arguable doubt about the correctness of the Industrial Tribunal’s decision we would have allowed the matter to proceed.

	However, in our judgment, looking at the definition in Schedule 1, paragraph 4(1) and approaching the matter, as the Industrial Tribunal is required to do, by taking account of the Guidance, in our judgment the Industrial Tribunal cannot be faulted in the way in which they approached the matter.  They set out the legislation carefully and applied the Guidance in the light of the facts which they found and in those circumstances, and for all those reasons we have to conclude here that there is no arguable ground of appeal against the Industrial Tribunal’s decision that there is no jurisdiction to hear the Applicant’s complaint under the 1995 Act.

	Accordingly, for those reasons this application will have to be dismissed.