DISPUTED DISABILITY

Hospice of St Mary of Furness v Howard

In disability discrimination cases, claimants have to show that they have a physical or mental impairment which has a substantial and long-term adverse impact on their ability to carry out normal day-to-day activities.

In Hospice of St Mary of Furness v Howard (2007, IRLR; IDS 831), the Employment Appeal Tribunal (EAT) said that employers can call evidence to try to disprove an employee’s claim that they have a physical impairment.

Mrs Howard’s union, Unison, instructed Thompsons to act on her behalf.

Basic facts

Mrs Howard started working for the hospice as their Director of Nursing in May 2004. A few weeks later she went off sick with back pain and was told by an orthopaedic consultant that it could be a recurrence of an old problem related to Scheuermann's disease (to do with the degeneration of her vertebral joints) which she had suffered from in adolescence.

However, in October 2004 the hospice occupational health doctor said she could return to work, describing her problem as a slipped disc. She was dismissed shortly afterwards.

Mrs Howard claimed she had a physical disability (an intermittently very painful neck and back) and that the hospice had discriminated against her. For its part, the hospice denied that Mrs Howard was disabled.

Expert report

The two parties agreed to instruct a joint expert – Mr Franks – who completed his report in December 2005. He said that Mrs Howard had clearly suffered a genuine attack of back pain which, when acute, was markedly disabling and that such attacks were likely to recur.

He confirmed in a letter dated January 2006 that he could not find any evidence of Scheuermann's disease, despite the fact that Mrs Howard’s medical records confirmed that the diagnosis had been made in the 1980s.

He added that although she was unfit to lift, bend or carry (all normal day-to-day activities), she could do administrative tasks when not in the acute phase of the condition.

The hospice then instructed a different orthopaedic surgeon, Mr Hodgkinson, to provide a report. He did not examine Mrs Howard, nor was he given her medical records but prepared a report following a meeting with the barrister for the hospice.

This suggested that Mrs Howard had no physical symptoms that constituted an impairment under the DDA. The hospice then asked for permission for their expert to examine Mrs Howard, but the tribunal refused permission saying that it would just cause further delay. The hospice appealed that decision, saying that it should have been allowed, given the amount of compensation (£300,000 plus an uplift because of her employer’s decision not to follow the statutory procedures) that Mrs Howard was claiming.

EAT decision

The EAT said that the employment tribunal chair had been wrong not to allow the hospice to instruct Mr Hodgkinson as its own medical expert. It agreed that claimants do not have to establish the cause of their physical impairment, but where it is disputed, employers can try to prove that the impairment is not genuine or that it is mental, not physical.

Instead, the chair had taken the view that Mr Hodgkinson’s report would add nothing useful and had failed to acknowledge that Mrs Howard’s case had potentially been weakened by the fact that Mr Franks could not ascertain what was causing her condition. Although Mrs Howard’s symptoms might well constitute a physical impairment (despite the lack of a clear diagnosis), that did not mean the other side could not call evidence to dispute her assertion.

In addition, the EAT said that the chair had misunderstood the decision in Vicary v British Telecommunications plc, which says that it is up to tribunals to decide whether an impairment has a substantial effect, not the expert. Likewise, tribunals should decide what is a normal day-to-day activity, not the expert, although that does not mean that the expert cannot express an opinion as to the possible consequences of the condition.

The appeal was therefore granted.