Case - Ministry of Defence v. B A Hay

[2008] IRLR 928; (2008) ICR 1247, Employment Appeal Tribunal - Katharine Newton QC

An impairment for the purposes of the Disability Discrimination Act 1995 s.1(1) could be an illness or the result of an illness.

The appellant employer (M) appealed against an employment tribunal's finding that the respondent employee (H) was disabled. H had brought a disability discrimination claim on the basis that his disability was a result of tuberculosis. Although expert medical evidence was that impairments attributable to tuberculosis alone would have had a substantial adverse effect on his day-to-day activities for less than 12 months, the tribunal held that he was nonetheless disabled by reason of a constellation of symptoms, not medically attributed to tuberculosis, which lasted more than a year. M submitted that the tribunal had found H was disabled (1) on a different basis from that which he had advanced before and at the hearing; (2) on the basis of all the material available at the time of the hearing rather than at the time of the alleged acts of discrimination.

HELD: (1) If a hearing was to be fair, each party had to be aware of the principal allegations to be made by the other, and have a reasonable opportunity of meeting them. So it would be entirely wrong for a tribunal to determine a case upon a matter which had not been argued before it, Chapman v Simon (1994) IRLR 124 CA (Civ Div) applied. Nevertheless, the rules made provision for the amendment of an originating application, but no formal amendment would be required where the claimant was merely expanding on what he had already said. H's originating application had relied upon a number of symptoms, and since an impairment could be an illness or the result of an illness for the purposes of the Disability Discrimination Act 1995 s.1(1), the tribunal's finding that he was disabled by reason of a constellation of symptoms had not been on a different basis from that originating application, McNicol v Balfour Beatty Rail Maintenance Ltd (2002) EWCA Civ 1074, (2002) ICR 1498 applied. (2) H was found to be disabled because his impairment had lasted 12 months, as required by sch.1 para.2(1)(a), and thus the decision did not turn upon any predictive element to be established on the facts known at the time as it would have been if the basis had been para.2(1)(b) or para.2(1)(c), Richmond Adult Community College v McDougall (2008) EWCA Civ 4, (2008) ICR 431 distinguished. The issue had been whether during H's absence from work, he had suffered for at least a year, encompassing the relevant act of discrimination, from an impairment or impairments which had a substantial adverse effect upon his normal day-to-day activities. In answering that question, the tribunal was entitled to have regard to later evidence.

Appeal dismissed.

For the appellant: Adam Tolley.
For the respondent: Katharine Newton.

For the appellant: Treasury Solicitor
For the respondent: David Downton & Co (Milton Keynes)
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