Court of Appeal, 2002. Full judgment: bailii.org.
Two appeals (the McNicol case and Rugamer v Sony Music Entertainment) raised issues of the application of the “physical or mental impairment” test to functional or psychological “overlay”, where a person claims to be suffering from physical injury but the doctor is satisfied that his or her symptoms are not the manifestation of any organic physical pathology. According to the medical evidence the person is ‘making it up’, even if only unconsciously.
In the Rugamer case the applicant reported symptoms including continuous and intermittent pains, which caused problems with his handling equipment. In the McNicol case the person was reporting neck and back problems. They claimed to have a ‘physical impairment’.
The EAT held that the tribunals had been correct in concluding that there was no ‘physical’ impairment’. A ‘mental impairment’ could produce physical effects but still be mental. The dividing line depended 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. The tribunals had (rightly in the EAT’s view) felt themselves unable to hold that there was a “mental” impairment since the evidence did not show with sufficient clarity that the condition as to a “clinically well recognised illness” had been met. As regards the legislation saying that this condition must be met for a “mental illness”, the tribunal also commented that the legislation left it unnecessarily unclear whether it meant this condition must be met for all “mental impairments” or only for a limited class of them.
On appeal to the Court of Appeal in the McNicol case only (the Rugamer case was settled), the Disability Rights Commission (DRC) expressed its concern about tribunals defining ‘impairment’ by reference to a particular diagnosis of the underlying illness that gives rise to the impairment or to the underlying cause of the impairment. It argued that the focus of the statutory definition was on the fact and effects of loss of function and not on the precise cause or diagnosis of the applicant’s condition. It contended that it may be difficult in some cases to make a distinction between mental and physical conditions and that impairments may be multi-factorial in origin.
Held by the Court of Appeal: The term ‘impairment’ bears its ordinary and natural meaning. It is clear from Schedule 1 that an 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”. The official Guidance on matters to be taken into account in determining questions relating to the definition of disability states in the Introduction section in Part 1 that “it is not necessary to consider how an impairment was caused” and some examples are given, but no general definition or description of ‘impairment’ is attempted. .
The Court of Appeal agreed with observations of Lindsay J in the EAT in College of Ripon & York St John v Hobbs  IRLR 185 (EAT/585/00) at paragraph 32 where he said:
“Nor does anything in the Act or the Guidance expressly require that the primary task of the ascertainment of the presence or absence of physical impairment has to, or is likely to, involve any distinctions, scrupulously to be observed, between an underlying fault, shortcoming or defect of or in the body on the one hand and evidence of the manifestations or effects thereof on the other. The Act 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- Sch. 1 para 1(1). 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. Nor is there anything there to be found to restrict the tribunal’s ability, so familiar to tribunals in other parts of discrimination law, to draw inferences.”
Lord Justice Mummery in the Court of Appeal continued:
“19. 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 with the stated effects. 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. The ordinary meaning of the statutory language and of the Guidance issued by the Secretary of State under section 3 (1) is sufficiently clear to enable the tribunal to answer the question on the basis of the evidence.”
The decision of the Employment Tribunal in this case was, said the Court of Appeal, consistent with that approach and did not contain any error of law.
Turning to comments made by the DRC, the Court of Appeal said it had indicated the approach which the tribunals should take on the definition and causes of impairment and to the differences between physical and mental impairment. The issue on this appeal was a short one, which did not call for a more detailed discussion of these topics and the Court declined to enter into the question of functional overlay canvassed in argument. The Court also commented on submissions by the DRC that the tribunal should adopt an inquisitorial and more pro-active role in disability discrimination cases. Finally, the Court added that the DRC’s important statutory duties did not entitle it, as such, to make representations to a tribunal or court in cases to which it is not a party. It is only in exceptional circumstances that a tribunal or court will consider it appropriate to receive representations from the DRC.
(Note that the issue of whether a mental impairment is a clinically well-recognised illness is no longer relevant from December 2005.)
- The lower tribunals seem to have found there was no ‘mental’ impairment largely because the applicants had not really argued and brought evidence on that aspect. The case illustrates the need (where there is doubt, as with stammering) to be prepared to argue in the alternative for there being a ‘mental’ impairment, for example, if one’s argument that the impairment is ‘physical’ fails.
- The employment tribunal in B v Servisair considered this case in deciding that a speech impediment was a ‘physical’ impairment.
- The case was considered by the Court of Session in Millar v Inland Revenue.