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Carden v Pickerings Europe Ltd

([2005] IRLR 720, EAT)

The applicant fractured his ankle in 1984. He had treatment which involved the surgical placement on the fracture of a plate and pins. Although there had been some minor problems, the surgery was successful to the extent that he did not meet the standard DDA definition of disability.

The applicant argued that the plate and pins should be seen as 'treatment or correction measures' within Sch 1 para 6, and thus be discounted. In other words, one should look at what the effects of the fracture would be without them.

Schedule 1 para 6

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.

... "measures" includes, in particular,
medical treatment and the use of a prosthesis or other aid...

The Employment Tribunal decided that the treatment, that is to say the insertion of the pins and plate, on the applicant's ankle, was completed in 1984. There was no evidence of any further treatment in respect of the fracture of his ankle. The treatment therefore could not be seen as continuing (see Abadeh and Woodrup cases), so Sch 1 para 6 did not apply.

Held by the Employment Appeal Tribunal:

The pins and plate could fall within Sch 1 para 6. The case was remitted to the Employment Tribunal to decide whether on the facts they still served sufficient function to do so.

The EAT said that the Employment Tribunal had concluded reasonably that there was no continuing medical treatment. Also the EAT found it very difficult to see how the plates and pins were a 'prosthesis'. The EAT continued:

But in any event, we have cited paragraph 6(1) of the Schedule above, and the Schedule is not limited to medical treatment, or indeed to the use of a prosthesis. The words in question in section 6(1) are "but for the fact that measures are being taken to treat or correct it." "Measures" is then defined in paragraph 6 subparagraph 2 as including, in particular, "medical treatment and the use of a prosthesis or other aid." Even leaving aside the non-inclusive definition of the word "measures" there is thus reference to the words "or other aid", and it appears to us that it might well be said, depending on the facts, that plates or pins would count as an aid, even if they do not count as a prosthesis; much as for example, the use of a stick by an otherwise handicapped person would amount to an aid.

Thus the pins and plates could be continuing measures to correct the problem within Sch 1 para 6. Whether they were depended upon whether they were giving any continuing support or assistance to the functioning of the applicant's ankle. It might be that the pins and plates were entirely historic and now served no function. There must be many occasions in which pins or plates were put in people's bodies which remain there for the rest of the patient's life, serving no continuing function once the bones have successfully knit together and recovered their original function. There will, however, be other circumstances in which the pins and plates continue to serve a necessary function.

An expert's report had asked the question whether, if the metal plate and pins were removed, the applicant would be more disabled, and had answered that effectively he would be. The expert went on to say that that would be the result of a necessary operation. However, this was not the relevant question, in the EAT's view. The question was whether, on the balance of probabilities, the plates, still in the ankle after 20 years, are or amount to a measure to treat or correct what would otherwise be a disability.

The EAT remitted the case to the Employment Tribunal to decide this issue on the facts.

The EAT pointed out that it had not addressed whether, if the applicant was in fact is a disabled person, he had any prospect of establishing that any treatment of him, by dismissal or otherwise, had any causative relationship with the alleged disability. It added that this question of causative relationship must always be a significant question to be raised where the disability is, as in this case, said to be not an 'actual disability' but one resulting from Schedule 1 paragraph 6. The fact that, if the applicant is disabled, he is disabled by virtue of the deeming provision in Schedule 1 paragraph 6 must, thought the EAT, make it the more difficult to prove that any alleged unfavourable treatment is by virtue of that deemed disability.

A full transcript of the judgment is available at www.employmentappeals.gov.uk/Public/Upload/EATS0081042542005.doc.

My comments

Decision is helpful for argument that eg speech techniques can fall within Sch 1 para 6

I find this EAT decision interesting for acknowledging that Sch 1 para 6 is not limited to medical treatment, prostheses or other aids. In other words, the definition of 'measures' is non-inclusive. The wording of para 6 seems to say this anyway, but that is sometimes forgotton. The basic question is whether there is a measure to treat or correct what would otherwise fall within the normal 'disability' definition.

This approach by the EAT is consistent with use of a speech technique, for example, by a person who stammers being treated as a 'measure' within para 6 - even if it is not 'treatment' or an 'aid'. If the technique is treated in this way, one could look at the effects the stammer would be likely to have if the technique were not being used. Of course the EAT was not addressing speech techniques in this decision.

One can see a rather neat analogy though between this case and how the EAT might appropriately treat speech techniques. If the person still has to use one or more techniques in order to speak without substantial (ie more than minor or trivial) dysfluency, he should be seen as disabled. This corresponds with the possible scenario that the plate and pins were in fact giving continuing support or assistance to the functioning of the applicant's ankle. If on the other hand the techniques are not longer needed for fluency - perhaps if fluent speech has become so natural for the person that it will happen anyway - he is not disabled, subject to other rules such as likelihood of relapse.

Showing disability was cause of dismissal, failure to employ etc

The EAT commented that it is more difficult to prove discrimination was caused by the disability where Sch 1 para 6 applies. I would say this is true if at all as a generality and not necessarily in a particular case one might want to take to a tribunal. If a person's speech is great, it may well be that the stammer was not the reason for him not getting the job - but then he probably wouldn't want to argue it was. However, for example, there may be some stammering or other effects despite - or because of - one's use of speech techniques; or the fact that the person has a stammer may have been disclosed to the employer and there may be reason to believe this swayed things.

As ever there can be problems with whether the stammer was the cause of the treatment complained of. However that is a general problem - which may be helped by the rules for shift in burden of proof.

Disability: Therapy

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