McNicol v Balfour Beatty Rail Maintenance Ltd

Under section 1 of the Disability Discrimination Act 1995, impairment bears its ordinary and natural meaning. A tribunal may consider expert medical evidence and reasonable inferences without imposing a rigid distinction between an underlying condition and its manifestations, or requiring an additional diagnostic formula. Mental impairment is subject to the statutory qualification concerning a clinically well-recognised illness. The applicant must establish impairment and a substantial, long-term adverse effect on normal day-to-day activities. An appeal from an Employment Tribunal lies only on a question of law, so factual findings supported by evidence are not revisited. The tribunal is adjudicative rather than inquisitorial, although case-management powers may assist parties in proving impairment.

The appellant, a railway trackman, claimed that a workplace accident caused a spinal injury leaving him disabled. He alleged that his employer had refused him work and had failed to make reasonable adjustments under the Disability Discrimination Act 1995.

On a preliminary issue, the Employment Tribunal found no physical impairment supported by the medical evidence, no clinically well-recognised mental illness had been advanced or proved, and no substantial long-term adverse effect on normal day-to-day activities. The Employment Appeal Tribunal dismissed his appeal but granted permission on the general meaning of impairment. The central issue before the Court of Appeal was whether the tribunal had made an error of law.

Lord Justice Mummery gave the substantive judgment. Lord Justice Wall and the Vice-Chancellor agreed.

1. Disposition and appellate jurisdiction. The appeal was dismissed. An appeal from an Employment Tribunal lies only on a question of law. The appellant was seeking to challenge factual findings which the tribunal was entitled to make on the evidence, so no appealable error arose.
2. Meaning of impairment. The term impairment in section 1 of the Disability Discrimination Act 1995 bears its ordinary and natural meaning. Subject to Schedule 1, an impairment may result from an illness or consist of an illness. In the case of mental impairment, Schedule 1 paragraph 1(1) requires a clinically well-recognised illness. The Act supplies no general definition of physical or mental impairment.
3. Evidence and fact-finding. Tribunals should decide in each case whether the available evidence fairly establishes a physical or mental impairment with the statutory effects. They may rely on expert medical evidence and reasonable inferences from all the evidence. They should not substitute a different word or formula for the statutory language, and the legislation does not require a rigid distinction between an underlying condition and its manifestations or effects. The court agreed with the observations of Lindsay J in College of Ripon & York St John v Hobbs [2002] IRLR 185 at paragraph 32.
4. Application. The Employment Tribunal accepted the medical evidence that no physical pathology explained the appellant’s symptoms. No case or evidence established a clinically well-recognised mental illness or functional overlay. The court declined to decide the wider functional-overlay issue because it had not arisen for decision on the evidence. The tribunal’s separate finding that there was no substantial long-term adverse effect was unappealed and would independently have defeated the claim.
5. Tribunal procedure. It was not helpful to describe the Employment Tribunal as inquisitorial or pro-active. Its role is to adjudicate disputes. The applicant bears the burden of proving impairment on the balance of probabilities, and the tribunal is not required to obtain medical evidence. It may, however, use flexible case-management powers, including directions and adjournments, to assist parties. The court agreed with the guidance in Morgan v Staffordshire University [2002] IRLR 190 at paragraph 20.
6. Representations by the DRC. The statutory duties of the Disability Rights Commission under the Disability Rights Commission Act 1999 did not entitle it, as a non-party, to make representations. A court or tribunal may receive such representations only in exceptional circumstances.

Appeal dismissed with costs, summarily assessed. Leave to appeal to the House of Lords refused.

1. Court of Appeal (Civil Division): dismissed the appeal, holding that no question of law arose and refusing leave to appeal to the House of Lords: [2002] EWCA Civ 1074.
2. Employment Appeal Tribunal: dismissed the appellant’s appeal on 27 July 2001, finding no material error of law, but granted permission to appeal on the general importance of the meaning of physical and mental impairment.
3. Employment Tribunal, Nottingham: determined the preliminary issue against the appellant, finding that he had not established a disability within section 1 of the Disability Discrimination Act 1995.