Millar v Commissioners of Inland Revenue
| Jurisdiction | Scotland |
| Judgment Date | 13 October 2005 |
| Neutral Citation | [2005] CSIH 71 |
| Docket Number | No 8 |
| Date | 13 October 2005 |
| Court | Court of Session (Inner House) |
Court of Session Inner House Extra Division
Lord Penrose, Lord Kingarth, Lord Drummond Young
Employment law - Unfair dismissal - Disability discrimination - Physical or mental impairment - Whether causation relevant in respect of physical impairment - Inadequate findings in fact - Disability Discrimination Act 1995 (cap 50), sec 1(1), (2), sch 1, para 1
Section 1 of the Disability Discrimination Act 1995 (cap 50) provides: "(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. (2) In this Act 'disabled person' means a person who has a disability." Paragraph 1 of sch 1 to the Act provides that "mental impairment" includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness.
The appellant was employed by the respondents. In July 1998 the appellant suffered an accident at work when he fell, striking his head against a washbasin and becoming unconscious briefly. He was treated at accident and emergency, but the hospital found no evidence of serious injury. Some time later the appellant began to experience a drooping of the left eyelid, sensitivity to bright light and headaches. At work he had difficulty using the VDU because of the glare. Extensive examination showed no physical signs for his complaints. In May 2002 the respondents dismissed him on the grounds of unsatisfactory attendance. The appellant applied to an employment tribunal complaining that he had been unfairly dismissed, both generally and in particular on grounds of disability discrimination. The employment tribunal held that he was not a disabled person within the meaning of the Disability Discrimination Act 1995. The Employment Appeal Tribunal upheld that decision. The appellant appealed to the Court of Session. The appellant argued that he had a physical impairment, causation was irrelevant, and if the physical impairment resulted from a mental illness there was no requirement that the mental illness was clinically well recognised. The respondents argued that the issue between the parties turned on the cause of the condition, the tribunal had to decide whether the appellant's condition was caused physically and it was entitled to conclude that the appellant did not have a physical impairment.
Held that the employment tribunal failed to make the core findings of fact necessary for a decision on the circumstances of the case, the decision disclosed an error of approach and 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 v Balfour Beatty Rail Maintenance LtdUNK [2002] IRLR 711 (paras 25-30); and appeal allowed.
Observed (per Lord Penrose) 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, and if an applicant is to avoid the test in para 1 of sch 1, it is incumbent on the applicant to demonstrate that it is physical in character; it seems highly likely that that will resolve into a question of causation in many cases, to be determined on medical evidence (paras 22-24).
McNicol v Balfour Beatty Rail Maintenance LtdUNK [2002] IRLR 711 commented upon.
Wallace Millar made an application to the employment tribunal alleging unfair dismissal, both generally and in particular on grounds of disability discrimination, from his employment with the Inland Revenue. On 7 May 2003 a hearing on directions was held by the employment tribunal. The Inland Revenue intimated that it did not accept that the appellant was a disabled person within the meaning of the Disability Discrimination Act 1995. A hearing was held to determine, as a preliminary issue, whether the appellant was within the scope of the Act. On 22 October 2003 the employment tribunal held that the appellant was not a disabled person, and dismissed his claim so far as it was based on disability discrimination. The appellant appealed to the Employment Appeal Tribunal (Lord Johnston, Mr JM Keenan and Mr MG Smith), which refused the appeal on 23 September 2004. The appellant appealed with leave to the Court of Session.
Cases referred to:
Blacker v Servisair (UK) Ltd S/105914/03, unreported
College of Ripon and York St John v HobbsICRUNK [1999] ICR 302; [2002] IRLR 185
Goodwin v Patent OfficeICRUNK [1999] ICR 302; [1999] IRLR 4
MacIver v Capita Business Services Ltd EATS/0065/02, unreported
McNicol v Balfour Beatty Rail Maintenance LtdUNKICRUNK [2002] EWCA Civ 1074; [2002] ICR 1498; [2002] IRLR 711
Rugamer v Sony Music Entertainment UK Ltd; McNicol v Balfour Beatty Rail Maintenance LtdICRUNK [2002] ICR 381; [2001] IRLR 644
The cause called before an Extra Division, comprising Lord Penrose, Lord Kingarth and Lord Drummond Young, for a hearing on the summar roll on 5 July 2005.
At advising, on 13 October 2005-
Lord Penrose- [1] The appellant was employed by the Inland Revenue. On 17 May 2002, the Board of Inland Revenue intimated to the appellant, by letter, that the board could no longer retain him in employment, and that he was to be dismissed from public service, on the grounds of unsatisfactory attendance, with effect from 15 August 2002. The letter intimated the appellant's rights of appeal under the Revenue's internal appeals procedure. The appellant followed the internal appeal procedure, but his appeal was refused by the Civil Service Appeal Board. The appellant applied to an employment tribunal complaining that he had been unfairly dismissed, both generally and in particular on grounds of disability discrimination. Following the decision of the Civil Service Appeal Board, a hearing on directions was held by the employment tribunal on 7 May 2003. The Revenue intimated that the board did not accept that the appellant was a disabled person within the meaning of the Disability Discrimination Act 1995 (cap 50). A hearing was therefore held to determine, as a preliminary issue, whether the appellant was within the scope of the Act.
[2] The appellant's application to the employment tribunal set out the basis of his contention, so far as it bore on the limited issue before the tribunal, as follows:
'I believe that I have a disability as defined by the Disability Discrimination Act. I suffered an accident at work in July 1998. I slipped in the toilets and hit my head on a sink. After a fortnight an injury to my left eye became apparent. This has been diagnosed as primary photophobia and secondary ptosis. The condition continues to this day. Specialists have said that the condition may clear up but there is no guarantee. As a result of this disability I cannot drive on sunny days or at night (because of sensitivity to on coming headlights). I cannot use a VDU for more than fifteen minutes. I cannot walk in bright sunlight.
After the accident I was off work for ten days. I went back to work for a fortnight. I then went off work and I have been off work ever since.'
[3] The written application set out that the appellant's work had involved intensive use of a VDU, and that the Revenue considered that the only work it could offer would similarly involve use of VDUs. It set out the legal and financial bases for his claims.
[4] The employment tribunal held that the appellant was not, either at the date of the hearing or at the time of the acts complained of, a disabled person, and dismissed his claim so far as it was based on disability discrimination. It was decided that the case should proceed to a full hearing on his claim of unfair dismissal only. The appellant appealed to the Employment Appeal Tribunal which, in turn, refused his appeal. Leave was granted to appeal to the Court of Session.
[5] The employment tribunal had before it the evidence of the appellant, his wife, and a consultant neurologist instructed by the Revenue. It also had access to a large number of medical reports on the appellant, and related...
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