Court of Session, 2005. Full decision: bailii.org.
Following a fall, the applicant developed a sensitivity to bright light, but no physical cause could be found for this. He argued it was a physical impairment.
The Employment Tribunal felt the situation was very similar to that in McNicol, and that it was compelled to follow the decision in that case that there was no physical impairment, and no mental impairment within the DDA because there was no clinically well-recognised illness. (The requirement for a clinically well-recognised illness is contained in paragraph 1 of schedule 1 DDA, and has now been repealed with effect from 5th December 2005.)
Held by the Court of Session: After quoting from the Court of Appeal judgment in McNicol, the court said it seemed to be clear that physical impairment can be established without reference to causation, and, in particular, without reference to any form of ‘illness’. But where there is an issue as to the nature of the impairment, it is a matter of fact whether it is physical or mental in character. If an applicant is to avoid the test in paragraph 1 of schedule 1, it is incumbent on the applicant to demonstrate that it is physical in character. It seemed highly likely that that would resolve into a question of causation in many cases, to be determined on medical evidence.
In a disputed case, proof that the signs and symptoms relied on by the applicant have physical illness or other physical condition as their cause might normally exclude paragraph 1. Proof that there was no physical cause of, or explanation for, the signs and symptoms would be an important factor to be taken into account in resolving, as a matter of good sense, on the evidence, whether paragraph 1 applied.
However, while the Tribunal’s decision was a possible one on the evidence, it failed to make the core findings of fact necessary for a decision on the circumstances of this case. Whether or not the circumstances are close to those dealt with in the previous cases, the appellant was entitled to have findings in fact on the evidence before the tribunal. The Tribunal must be invited to consider the evidence again, to indicate what evidence it found acceptable and what it rejected, to state the facts found on the basis of the reliable evidence in the case, and to apply its mind to the general guidance provided by Mummery LJ in McNicol in particular.
My comments
- Since stammering is most likely a ‘physical’ impairment (B v Servisair), it is probably not an ‘illness’, and appears to be clinically well-recognised in any event, the case is of very little importance for stammering, even for cases which arose before 5th December 2005. (From that date there is no longer a requirement in ‘mental impairment’ cases for any illness to be clinically well-recognised. There has never been such a requirement for ‘physical impairments’.)
- Interestingly, the employer’s argument in the present case cited B v Servisair, a case on a speech impediment. Quoting from paragraph 17 of the judgment in the Millar case, where the employer’s argument is being summarised:
…It was difficult to see how the Tribunal could apply the Act as a whole without resolving issues of causation where they were live issues between the parties. The onus was on the applicant: cf B…… v Servisair (UK) Ltd Case no S/105914/03. On the wording of the Act, there had to be either a physical or mental impairment. In B…… the applicant’s condition could have had either physical or clinically well-recognised mental causes: medical science could not distinguish between them. But the applicant qualified on either approach. In the present case, by contrast, the Tribunal had to resolve one question only, whether the appellant’s condition was caused physically.
In other words, the employer’s representative was saying that the speech impediment in the B v Servisair case would be covered by the DDA whether it was ‘physical’ or ‘mental’ – though the court did not consider this.
