Wallace Miller V. An Order And Judgment Of Employment Appeal Trobinal
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Kingarth,Lord Penrose |
| Date | 13 October 2005 |
| Docket Number | XA145/04 |
| Court | Court of Session |
| Published date | 13 October 2005 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Penrose Lord Kingarth Lord Drummond Young
| XA145/04 OPINION OF LORD PENROSE in APPEAL TO THE COURT OF SESSION under Section 37(1) of the Employment Tribunals Act 1996 by WALLACE MILLAR Appellant; against An order and judgment of the EMPLOYMENT APPEAL TRIBUNAL dated 23 September 2004 _______ |
Act: Napier, Q.C.; L Welsh; Disability Rights Commission (Appellant)
Alt: Paterson; Solicitor for Commissioners of Revenue & Customs (Respondents)
13 October 2005
[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 procedures. 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. 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 complaint, 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 correspondence. It was accepted by the Revenue that the appellant's account of the signs and symptoms on which he relied was credible. None of the specialists who had examined him had reservations about his credibility. The hearings before the tribunals and the court proceeded on the basis that the information the appellant had provided was credible.
[6]The accident referred to by the appellant occurred on 28 July 1998. The exact circumstances of the fall were not recalled, but the appellant did remember falling, striking his head against a wash basin, and becoming unconscious briefly. He was taken home. Next day he suffered aching in his left side and neck. He saw his General Practitioner, Dr Blyth, who referred him to the Accident and Emergency Department at Edinburgh Royal Infirmary. The hospital found no evidence of serious injury, and he was diagnosed as having neck strain.
[7]Some time later the appellant began to experience drooping of his left eyelid. He associated that with sensitivity to bright light which he was also experiencing. He began to suffer from headaches, which he associated with problems with is eyes. At work he had difficulty using the VDU because of glare. He was referred, by Dr Blyth, to the Department of Clinical Neurosciences at the Western General Hospital where he was seen by Dr Christian Lueck, a consultant neurologist, and Dr Gawn McIlwaine, a consultant ophthalmologist. Extensive examination and testing revealed no abnormalities. There was no abnormality in his vision. The ptosis appeared to the specialists to result from a depression of his left eyebrow. No structural cause was identified for these physical features as a result of these procedures. He was advised that photophobia could occur in the absence of structural damage, and the specialists suggested the use of dark glasses. Their view was that there was nothing that would stop the appellant getting better, nor stop him working.
[8]Matters did not improve. Dr Blyth again referred him to Dr Lueck in June 1999. Dr Lueck in turn referred him to Dr Moran, a consultant clinical neurophysiologist. Dr Moran described the appellant's symptoms as very unusual, and instructed further tests. These showed no abnormality at all, as reported to Dr Blyth by Dr Lueck.
[9]The Tribunal's narrative of the evidence on the appellant's more recent history was as follows:
"Following further approaches from the applicant himself and Dr Blyth on his behalf, Dr Lueck suggested that the applicant be seen by staff in his department who were conducting a study on unexplained motor symptoms jointly with the Liaison Psychiatry Department. This resulted in his being seen in January 2001 by Dr Jon Stone, registrar in neuropsychiatry, who encouraged him to see his problem as photophobia, which could be treated by graded exposure to light, and also discussed with him the interaction of psychological factors. He continued to attend Dr Stone's clinics on a regular basis throughout 2001, and following his clinic in June, Dr Stone reported him as making slow but definite progress. Dr Stone also entered into correspondence with the respondents' occupational health adviser and with the respondents' human resources section regarding possible arrangements for his return to work.
Over this period, the applicant was also seen on a number of occasions by Drs Saravolac and Freeland, specialists in occupational medicine, who acted as advisers to the respondents, to assess his condition and advise on the prospects of his return to work and the arrangements which they considered should be made for this purpose. In his report on a meeting with the applicant on 2 October 2000, Dr Freeland stated:
'There appears to be no organic cause for the ptosis currently suffered by Mr Millar. His complaints of photophobia and ptosis cannot be logically explained by the trauma he experienced during the accident. The diagnosis by default has resulted in functional ptosis being the preferred option.'
It was clear from the applicant's own evidence to the tribunal that he suffered considerable difficulty in coping with situations where he was exposed to particularly bright light. These included being outdoors in conditions of bright sunlight, which was a problem both in general, and had in particular reduced his participation in gardening activities; while this was predominantly a problem of the summer months. During winter months he experienced problems indoors through being in artificially lit rooms for longer periods. He also experienced problems with driving a car, being unable to drive at night due to the glare of headlights, in watching television, which he could only do for relatively short periods of time, and in operating a computer, because of the glare from the VDU. In addition to the problems caused (due) to his eye becoming watery and leading to blurred vision, he also suffered from headaches, which he described as very severe, and while they were susceptible to treatment by painkillers and rest, at their onset he was unable to perform any other activity. The degree of severity of these problems varied over the period, but they were always significant, and remained so.
For the purposes of this hearing, the applicant was seen by Dr Grant on 20 July 2003, and in a supplementary report written in the light of the provisions of the Disability Discrimination Act, he stated:
'Mr Millar complains of many symptoms: eg light sensitivity in left eye with resultant partial closure of the eye, headache/neck ache, numbness on left cheek, symptoms of depression.
- On physical examination, I cannot find any physical eye signs to account for the subjective complaint of light sensitivity.
- The partial closure of the eye is voluntary or subconscious, rather than as a result of damage to nerve, muscle, subcutaneous tissue or bone.
- I cannot find any physical signs that might provide a clear physical cause for the headaches. I assume this is a reaction to light sensitivity or alternatively but less likely to partial closure of the eye.
- There are some subjective signs of numbness over the left cheek, that could approximately fit in to the cutaneous distribution of the infra-orbital nerve. There are not however any signs to suggest previous fracture of the maxilla or inferior orbit and no history to suggest severe bruising around the eye or cheek as a result of the accident.
- Mr...
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