Appeal No.	 EAT/452/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 October 2001
Judgment delivered on 4 December 2001

Before
THE HONOURABLE MR JUSTICE WALL
DR D GRIEVES CBE
MR D J JENKINS MBE

MR R CONDAPPA	APPELLANT

NEWHAM HEALTH CARE TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR TREVOR SIDDLE
(of Counsel)
Instructed By:
Messrs McKay Beer
Solicitors
122a Gloucester Avenue
Primrose Hill
London NW1 8HX	
For the Respondent	MR KEITH MORTON
(of Counsel)
Instructed By:
Messrs Beechcroft Wansbroughs
Solicitors
100 Fetter Lane
London EC4A 1BN	

MR JUSTICE WALL:

1	This is an appeal by Mrs Rachael Condappa (the Appellant) against the unanimous decision of the Employment Tribunal held at London (North) on 14 –15 December 1999, 16 – 17 February 2000, with Extended Reasons being sent to the parties on 24 February 2000.  The Appellant was the Applicant before the Tribunal:  the Respondent to the application and to this appeal is Newham Healthcare NHS Trust (the Respondent).

2	The decision of the Tribunal was to the following effect:-

(i)	the Applicant was not a person disabled within the meaning of the Disability Discrimination Act 1995;
(ii)	the Applicant was not constructively unfairly dismissed;
(iii)	the Respondents have not breached the Appellant’s contract of employment.”

3	The Tribunal identified the issues before it in these words:-

“(1)	Whether the Appellant is a disabled person within the meaning of section 1 of the Disability Discrimination Act.
(2)	If she is a disabled person whether the Respondent has failed to take reasonable steps to adjust its employment arrangements for the Appellant.
(3)	Whether the Respondent has treated the Appellant less favourably because of her disability in that the Respondent could have made reasonable adjustments.
(4)	Whether the behaviour of the Respondent was a breach of contract that went to the root of the contract which entitled the Respondent (sic) to resign and as such claim that she was constructively unfairly dismissed.”

4	We were told by Counsel who argued the appeal before us that the question of the Appellant’s disability was treated by the Tribunal as a preliminary issue.  Accordingly, the Tribunal heard evidence from the Appellant in full on all aspects of her claim:  it then went on to hear the medical evidence in order to decide the disability issue.  On 16 February 2000 the Tribunal gave its ruling on the issue of the Appellant’s disability, with reasons which were subsequently incorporated into the substantive decision sent to the parties on 23 February.

5	At a preliminary hearing of this appeal, the Employment Appeal Tribunal, presided over by His Honour Judge J.R. Reid QC permitted the appeal to go forward to a full hearing principally on the ground that it was arguable that the Tribunal had looked only at the question of whether the Appellant was disabled within the meaning of the Act as at the date of the hearing before the Tribunal.  It was argued that the Tribunal did not look at the position as at earlier dates and, in particular, had not looked at the question whether or not the Appellant had been disabled between the time she had last worked (21 May 1998) when she sustained a back injury whilst dealing with a mother on the ward where she was employed as a Ward Sister and the time when she left her employment on 14 January 1999.  

6	It was common ground between Counsel that “the relevant period” for the purposes of the Act in the instant case was between 21 May 1998 and 14 January 1999.  The critical question in the appeal, therefore, is whether or not the Tribunal’ s finding that the Appellant was not a person disabled within the meaning of the Act 1995 related to that period.  

7	It was accepted by Mr Keith Morton who appeared on behalf of the Respondent that there was no specific reference in the Tribunal’s Reasons to the specific question of disability between the two relevant dates.  He argued, however, that by treating the matter as a preliminary issue, the Tribunal must of necessity have directed its mind to the dates, since those were the relevant dates for the purposes of the Act.  We will, of course, return to consider this point in greater detail later.  For present purposes, however, we think it most unfortunate that the preliminary issue was not reduced to writing and  specifically defined.  Had that been done it would, we think, have concentrated the minds of the parties and the Tribunal on the relevant dates.  As it is, there is, at first reading, an element of ambiguity in the Tribunal’s Reasons sufficient to make it arguable that the Tribunal assessed disability at an irrelevant date.  Had the issue been formulated as it should have been, it may well be that this appeal would have been unarguable:  alternatively it would have required argument on different grounds.  

The Law

8	The relevant sections of the Disability Discrimination Act 1975 (“the Act”) are the following:

“ ‘1  Meaning of disability” and ‘disabled person’ 
(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 Past disabilities
(1)  The provisions of this Part and Parts II and III apply in relation to a person who has had a disability as they apply in relation to a person who has that disability. … 
…
(4)  In any proceedings under Part II or Part III of this Act, the question whether a person had a disability at a particular time (‘the relevant time’) shall be determined, for the purposes of this section, as if the provisions of, or made under, this Act in force when the act complained of was done had been in force at the relevant time.
…
3 Guidance
(1)  The secretary of State may issue guidance about the matters to be taken into account in determining –
(a)	whether an impairment has a substantial adverse effect on a person’s ability to carry out normal day-to-day activities;  or 
(b)	whether such an impairment has a long-term effect.
(2)  The guidance may, among other things, give examples of – 
(a)	effects which it would be reasonable, in relation to particular activities, to regard for purposes of this Act as substantial adverse effects;
(b)	effects which it would not be reasonable, in relation to particular activities, to regard for such purposes as substantial adverse effects;
(c)	substantial adverse effects which it would be reasonable to regard, for such purposes, as long-term;
(d)	substantial adverse effects which it would not be reasonable to regard, for such purposes, as long-term.
(3)  A tribunal or court determining, for any purposes of this Act, whether an impairment has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities, shall take into account any guidance which appears to it to be relevant.”

8	Paragraph 2 of Schedule 1 to the Act deals with the question of the long-term effects of any impairment.  It provides:

“2 – (1)   the effect of an impairment is a long-term effect if -
(a)	it has lasted at least 12 months;
(b)	the period for which it lasts is likely to be at least 12 months;  or
(c)	it is likely to last for the rest of the life of the person affected.
     (2)  Where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”

9	The Guidance under the Act was issued by the Secretary of State for Education and Employment on 25 July 1996 in paragraph 1 the Guidance makes clear that:

“in the vast majority of cases there is unlikely to be any doubt whether or not a person has or has had a disability, but this Guidance should prove helpful in cases where it is not clear.”

10	In paragraph 3 of the  Guidance, reference is made to Part II, which relates to matters which are to be taken into account when considering whether an effect is substantial and / or long-term.  It states that:

“Most of the examples are to be found here, and particularly in Section C.  B because the purpose of this guidance is to help in the cases where there is doubt, examples of cases where there will not be any doubt are not included.”

11	Section C of the Guidance is headed Normal day-to-day activities. It runs to 21 detailed paragraphs, to which we will return when considering the reasons given by the Tribunal.

The Facts

12	The Appellant was born on 24 June 1944.  On 1 June 1974 she began employment with the Respondent’s predecessor the City and East London Area Health Authority.  On 24 June 1974 she signed a contract of employment which is in our papers in which she accepted a post as Staff Midwife in the Midwifery Division at Plaistow Maternity Hospital.

13	On 1 September 1978 she accepted a post as Midwifery Sister in the Midwifery Division of the Newham Health District at Plaistow Maternity / Forest Gate Hospital.  

14	On 1 April 1981 she accepted a post as Midwifery Sister to work in the Antenatal Clinic of Newham Maternity Hospital.

15	On 13 December 1984 she accepted a post as Ward Sister at Newham General Hospital, the post being described as “Sister in the Midwifery Unit”.  The letter which the Appellant signed when accepting this post read (in part):

“Following your transfer, you shall continue with your present duties until the appropriate time for you to take on the new duties described in the job description.  
Whilst you will be primarily based at the above location, you may be expected to work at some other location within the Authority as may be necessary in the best interests of the Service.”

16	On 26 November 1987 the Appellant sustained an injury to her back which kept her away from work until October 1998.  During her absence from work she was informed by the out-going General Manager of an intention to restructure the Women’s Services at Newham General Hospital and to create the post of Antenatal Clinic Manager.  

17	In January 1998, the Appellant says she was informed of the intention on the part of the new General Manager for Women’s Services at the Hospital, Ms Beal, to restructure Women’s Services and to introduce rotation between wards for Midwives.  The Respondent says this information was given earlier following concerns about clinical practice, but the difference in dates is not material and was not resolved by the Tribunal.  

18	On 29 January 1998 there was a meeting between Ms Beal and the Appellant in which the Appellant voiced her concerns about a move to the Central Delivery Suite, given her back problem. 

19	On 11 February 1998 the Appellant was admitted to hospital suffering from severe pains in her leg and was certified unfit for work.  On 13 February 1998 she was referred to the Occupational Health Department re her “longstanding” back complaint.  

20	On 8 April 1998 the Appellant saw Dr Dickson at the Occupational Health Department.  Dr Dickson wrote to the Senior Midwife as a consequence of that appointment stating that it would be reasonable for the Appellant to return to work on 10 April 1998 in the Antenatal Clinic, but not on the ward.  That duly happened and on 27 April 1998 the Appellant returned to work in the Antenatal Clinic.  

21	On 5 May 1998 there was a meeting between Ms Beal, the Appellant and others concerning the proposed rotation.  The Appellant alleges (although it is not substantiated by the Tribunal) that she was told at that meeting that if she did not move to the Central Delivery Suite she would be dismissed.  

22	On 8 May 1998 the Principal Midwife wrote to the Appellant confirming her agreement to move to the Central Delivery Suite and on 15 May 1998 the Appellant’s representative confirmed in  writing to Ms Beal that an agreement had been reached which was designed to facilitate the principle of rotation required by the local authority taking into account the Appellant’s problems with her back.  Park of the agreement, which is set out in detail in the letter of 8 May 1998 from Ms Beal to the Appellant was that a representative from Occupational Health was to undertake a risk assessment on the Appellant.

23	The Appellant started work on the Central Delivery Suite on 18 May 1998, and an Occupational Health Nurse duly arrived on the following day to commence the risk assessment.  Most unfortunately, it could not be carried out to completion because on 21 May 1998 the Appellant sustained an injury to her back.  What happened was that she went to congratulate a patient who had just given birth.  That patient seized her hand and endeavoured to use her as a means of levering herself into an upright position.  The consequence was that undue strain was imposed on the Appellant’s back.

24	The Appellant saw her general practitioner on 26 May 1998 and was certified unfit for work.  On 17 June 1998 she went back to see Dr Dickson who, on 12 August 1998 wrote to Ms Beal in the following terms:

“Rachael has known back pathology which has been thoroughly investigated, and for which specific treatment is unlikely to be available.  Although she has long periods where her symptoms are not so significant as to prevent her from attending work, I nonetheless consider that she has a permanent disability.
The natural history of a back condition such as Rachael’s is such that she can be expected to return to a state of physical health where she would be capable of carrying out all of the duties of her job description, (including delivery suite, and community work), but that work in areas where there would be significant likelihood of further trauma, would be likely to result in a relapse of her symptoms.  Rachael’s job description requires her to be multi-functional, and the NHS Pensions Authority would be likely to look favourably upon a request for ill health retirement on the basis that a return to the full duties of her job description would very likely to lead to a recurrence of her symptoms.
From the above it is clear that both permanence and incapacity (to carry out the full duties of her post as described in her job description) are satisfied.  On the other hand, I have concerns under the Disability Discrimination Act that a ‘reasonable adjustment’ for Rachael to continue to work in the Ante-natal Clinic where I consider that the risks of further injury are small, and where she has already worked for a significant period of time without apparently further injuring her back.  While you may not need to draw attention to this in an application for ill health retirement, it may nonetheless form a basis for concerns to Rachael herself. 
…
If Rachael is to return to work, I would be happy for her to continue in the Ante-natal Clinic or Maternity Day Care Unit.  If she is to have a short period of further experience on the labour ward, I would be happy for her to be there under supernumerary capacity only. … .”

25	On 14 August 1998 the Appellant’s representative wrote to Ms Beal asking whether there were any proposals with regard to her employment position.  On 6 October there was a meeting to discuss various courses of action.  On 8 October 1998 Mr Lucas of Human Resources wrote to the Appellant’s representative and confirmed a discussion which included possible solutions for return to work with alternatives as ill health, retirement, redundancy, alternative settlement and dismissal due to incapacity.  

26	There was a further meeting on 10 November 1998.  On 20 November 1998 the Head of Human Resources wrote to the Appellant’s Solicitor refuting any suggestion of disability discrimination and suggesting the possibility of alternative employment for the Appellant as a Bereavement Counsellor.  This the Appellant rejected and on 14 January 1999, she resigned.  Her form IT1 was issued on 10 February 1999.  

The Medical Evidence

27	In addition to the reports of Dr Dickson, to which I have already referred, the Appellant was examined for the purposes of the proceedings by two doctors.  The first, Mr John Paul Murphy, a Consultant Trauma and Orthopaedic Surgeon examined the Appellant on 5 June 1999.  The second, Mr Michael Podmore, a Senior Specialist Orthopaedic Registrar, examined the Appellant on 8 August 1999.  

28	Mr Murphy’s opinion was that the Appellant suffered from long-term mechanical low back pain which had been largely kept under control until February 1998.  He concluded:-

“[The Appellant’s] employment is not the cause of her back pain problems and she suffered a severe exacerbation of her underlying chronic low back pain prior to moving to ward duties.  It is likely therefore that she would have suffered another severe exacerbation at some point and that unfortunately the incident of 21.6.98 was the next trigger event and was an inevitable event of returning to ward work in view of her exacerbation in February 1998.  The decision to allocate her to ward duties even with the provision of never lifting alone was a poor choice.  She was not however to my mind disabled as defined by the Disability Discrimination Act 1995 at that point in time.  Her subsequent deterioration after her exacerbation of 21.5.98 now puts her in that category.  Had [the Appellant] not been commenced on ward duties and suffered the incident of 21.5.98 I suspect that she would have maintained her improvement for a number of months more than she has but the eventual outcome would still have occurred by another minor incident / activity.  In her present condition [the Appellant] is unable to return to any nursing duties and is unlikely to ever be able to return to these.”

29	Mr Podmore had the advantage that when he wrote his report he had the Guidelines under the Act of 1995 before him and his examination and report were directed specifically to that question.   He comments that:

“In order to come to a conclusion it was imperative that I fully interview and examine [the Appellant] in order to get an overall picture of her health, past medical history and an idea of possible disability that may now exist.”

His conclusion and opinion, after a detailed assessment, was in the following terms:

“Undoubtedly this lady has a long history of degenerative back disease stretching back to as far as 1987.  The natural history of this condition is for intermittent periods of exacerbation punctuated by intermittent asymptomatic periods.  Unfortunately, the incident in May 1998 has only set off an exacerbation and in my opinion she would have had another exacerbation at some point in time in the future in any case.  The clinical examination certainly points to a degenerate spine and it would seem that she is extremely stiff – stiffer than I would expect in somebody with simple degenerative disease.  Many people in the working community have degenerative disease of the back and as long as they remain well, exercise, and have a positive outlook on the problem, they remain fairly mobile.
Undoubtedly, her condition does give her adverse affects in her life but she is able to carry out many normal day to day activities such as light shopping, travelling in a car, walking and some gardening.  I do not believe that the adverse affects are substantial in nature and therefore, I do not conclude that she is disabled as defined by the Disability Discrimination Act of 1995.  I do not think she has been disabled at all during the period of her employment up to 14.01.99 as described in the Disability Discrimination Act of 1995.
Undoubtedly, up until the date of accident on 25.05.98 she was not disabled and indeed she herself had not believed she was disabled up until that point.  I believe that if she had had correct and well directed back physiotherapy for mobilisation and back strengthening plus a positive attitude to recovery from symptoms that she had suffered from in the past then I suspect she would have been able to return to work quite adequately as she has done so in the past after episodes of back discomfort.”

30	It is, we think, of some importance that Mr Podmore specifically addresses his mind in these concluding paragraphs to the period 21 May 1998 (the date of the accident) to 14 January 1999 (the date of her resignation).

The Tribunal’s Approach

31	The Tribunal, having set out the history of the matter in considerable detail, dealt with the question of disability in the following way.  We feel it necessary, in order to give the full flavour of their reasoning, to cite extensively from their reasons:

“24  For the purposes of these proceedings the Applicant had been examined by two doctors both of whom have given evidence before us.  John Murphy a Consultant, Trauma and Orthopaedic Surgeon at the Northwick Park Hospital, and Malcolm Podmore from the National Orthopaedic Hospital.  The two doctors agreed prior to giving evidence the following matters:
(1)	The Applicant has improved since they both examined her in June and August 1999.  
(2)	The activities of daily living show no substantial adverse effect.
(3)	The Applicant can modify her behaviour to carry out day to day activities.
(4)	In June and August 1999 the Applicant was not capable of working in a ward environment.
25  Mr Murphy and Mr Podmore both concluded that the Applicant suffered from long term mechanical low back pain which up until February 1998 had largely been kept under control.  Both doctors agree that prior to May 1998 the Applicant was not a disabled person as defined within the Disability Discrimination Act 1995.  Mr Murphy is of the view that the Applicant’s subsequent deterioration after May 1998 now puts her into that category.  Mr Podmore disagrees.  The information given is consistent namely that the Applicant has persistent and constant pain 24 hours a day aggravated by lifting, bending, standing and walking.  However she does her own housework, shopping, cleaning and gardening.  Her shopping is limited to doing light shopping as she asks her son to lift any heavy shopping.  She was able to do her own housework albeit slowly.  She was able to look after her grandchildren aged 8 and 2 and she was able to work in the garden but could not bend down to pick up weeds but used either a stool or knelt.  Mr Podmore concluded that in general she was able to carry out all the activities of daily living albeit at the end of the day she might be in some discomfort.  Both doctors agree that the incident in May 1998 set off an exacerbation of her condition which would have happened at some point in time in any event.  Mr Podmore considered that the stiffness manifested by the Applicant at the time of his examination in August 1999 was greater than he would have expected in somebody with simple degenerative disease.  Mr Podmore concluded that her condition had an adverse affect in her life but she was able to carry out many normal day to day activities such as light shopping, travelling in a car, walking and gardening and that the adverse affects were not substantial in nature, therefore she was not disabled within the meaning of the Act.  Mr Murphy’s view that the decision to allocate the Applicant to ward duties even with the provision of never lifting alone was a poor choice and that after the incident on 21 May 1998 the Applicant was disabled within the meaning of the Act.
26	The issue for the Tribunal is whether the Applicant is disabled within the meaning of the Disability Discrimination Act.  In order to make that decision the Tribunal must have regard to the guidance.  The Tribunal noted that Mr Murphy specifically stated that the improvement now shown by the Applicant was markedly greater than expected.  He did not support the theory that the Applicant put forward that her improvement demonstrated within the Tribunal was as a result of improved medication as the medication did not take the pain away they merely make the pain more manageable.  All the tasks which the Applicant described she was able to do she would be able to do even if she were not taking the drugs.  The Tribunal therefore did not consider further whether the consideration of the Applicant’s ability was in some way affected by the taking of the drugs.
27	The guidance states at c(i) that the Act states that an impairment must have long term substantial adverse effect on normal day to day activities which should not include activities which are normal only for a particular person or group of activities and therefore should exclude work.  The guidance then advises the Tribunal to consider specific matters and in this case specifically mobility and the ability to lift, carry or otherwise move every day objects.  The evidence before the Tribunal is that the Applicant was able to walk without assistance in any form albeit stiffly.  She could walk up and down steps, she could travel on public transport and could go out of doors unaided.  She could travel in a car for reasonable lengths of time albeit on a long journey she found it uncomfortable.
28  Her ability to life was described that she was able to carry light loads of shopping and would be able to transfer bags of shopping from a supermarket trolley to a car.  She would not be able to carry heavy bags of shopping home but she would be able to carry loads of up to about 10 lbs.  If she was advised appropriately she would be able to carry a light chair, such as a dining room chair, she was able to lift and carry a kettle of water or a tray.  She was able to carry out normal housework such as hoovering and do some gentle gardening.  She had had to cease her hobby of reggae dancing but she gave that up only in May 1998.
29  In order for the Applicant to be able to pursue a complaint under the Disability Discrimination Act it is necessary for her to prove that she is a person disabled within the meaning of the Act 
30  The Tribunal noted that Mr Murphy was a specialist in the Orthopaedic field as a consultant whereas Dr Podmore was not.  The Tribunal also noted that Mr Murphy did not have the guidance on the Disability Discrimination Act before him when he wrote his report;  Dr Podmore did.  The Tribunal also heard from Dr Dickson.  His views as a general practitioner did not carry as much weight as the two doctors asked specifically to address the question of the Applicant’s disability.  Dr Dickson’s role was mainly to advise the Respondent how best to manage the Applicant’s back problem within the work environment.
31  The Applicant in common with a huge number of people in Great Britain apparently 50% of people over the age of 50 would have signs of degenerative spinal problems had a bad back.  She had to make adjustments to deal with that bad back but it could not be said that the adjustments she made in order to cope with that bad back meant that there was a substantial adverse affect on her day to day living or her ability to carry out normal day to day activities.  She clearly had a weak back and would not be in a position to lift or carry heavy loads.  She had taken reasonable precautions to adapt her life style according.  However the evidence before us was that she could perform albeit with some difficulty difficult tasks of housework such as cleaning the bath which involved complicated stretching and pulling movements;  she could do gardening;  even weeding involves some degree of manoeuvrability when conducted from a kneeling position or a stall.  She was able to pick up shopping from a supermarket trolley and put it in a car, an action which involves considerable bending, stretching and twisting.  We therefore concluded having heard the medical evidence and the submissions from both the Applicant and the Respondent and having observed the Applicant whilst in the Tribunal that she was not a person whom it could be said that the problem she had with her back had a substantial adverse affect on her ability to carry out normal day to day activities.  It clearly did have an effect on her but it was one, in common with so many other people, that she could manage.  Her problems were not such that it was only with the use of drugs that she was able to perform these jobs as the medical evidence was such that the drugs would not have an impact on her ability to perform these tasks.
32	We therefore concluded that the Applicant was not a disabled person within the meaning of section 1 of the Disability Discrimination Act 1995.”

32	Mr Trevor Siddle, on behalf of the Appellant, attacks the Tribunal’s reasoning on a number of bases.  He points out first of all that the Guidance issued by the Secretary of State under section 3 of the Act of 1995 requires a Tribunal to consider the time taken to carry out an activity and the way in which an activity is carried out when considering whether an adverse effect is “substantial” within the meaning of Act.  He argues, accordingly, that the Guidance clearly envisages a disability which does not prevent normal day-to-day activities but does hinder them.  He relies on the definition of “adverse” in the New Shorter Oxford English Dictionary as meaning “hurtful, injurious”.  He argues that the Tribunal’s reasoning implies that one cannot be disabled within the meaning of the Act if one can carry out normal day-to-day activities, albeit with difficulty or in pain.  He submitted that this was a flawed approach.  He relied on the decision of the EAT, presided over by Morison J in Goodwin v The Patent Office [1999] IRLR 4.  

33.	Mr Siddle’s second line of attack was that which prompted the EAT at the preliminary hearing of the appeal to allow it to go forward.  Mr Siddle cited section 2(4) of the Act.  He argued that the question of the Appellant’s disability depended upon whether she had it at a particular time the “relevant time”.  This, as was conceded by Mr Morton, was between the date of the incident with the patient (21 May 1998) and her resignation on 14 January 1999.  Mr Siddle complained that the Extended Reasons were confined to a consideration of whether the Appellant was currently disabled, that is to say disabled at the date of the hearing before the Tribunal.  He argued there was no assessment of past disability, and no consideration was given by the Tribunal to the concept of the “relevant time” within section 2(4) of the Act.  It was, he argued, of central importance for the Tribunal to determine whether the Appellant was ever disabled within the meaning of section 1, and if so, for how long.  There was evidence that the Appellant was disabled after 21 May 1998;  see the report and evidence of Mr Murphy.  The Tribunal had paid too little weight to the evidence of Dr Dickson, who was the Respondent’s own Occupational Health Physician and who had examined the Appellant in both April and August 1998.  

34	Thirdly, Mr Siddle argued that by failing to consider whether the Appellant was disabled whilst working for the Respondent (and if so for what period) the Tribunal failed to consider whether the effect of the Appellant’s impairment was long-term as required by Schedule 1, paragraph 2 of the Act.  

35	Fourthly, Mr Siddle submitted that the Tribunal did not refer to the meaning of “substantial”.  The meaning to be found in the Guidance at A1 is as follows:  “The requirement that an adverse effect be substantial reflects the general understanding of ‘disability’ as a limitation going beyond the normal differences in ability which may exist among people.  A ‘substantial’ effect is more than would be produced by the sort of physical of mental conditions experienced by many people which have only minor effects.  A ‘substantial’ effect is one which is more than ‘minor’ or ‘trivial’.”

36	Basing himself on this definition, Mr Siddle asserts that the Tribunal does not properly address the point, and in fact applies a higher test.  He cites the Tribunal’s conclusion that:

“she [the Appellant] was not a person whom it could be said that the problem she had with her back had a substantial adverse effect on her ability to carry out normal day to day activities.  It clearly did have an effect on her but it was one, in common with so many other people, that she could manage.”

37	In reaching this conclusion, Mr Siddle submits that the Tribunal disregarded Mr Murphy’s evidence that the Appellant’s pain was more than minor or trivial and concentrated too much on what the Appellant could do rather than what she could not do or could only do with difficulty. 

38	Fifthly, Mr Siddle criticised the Tribunal for repeating the evidence put forward by Mr Murphy that the Appellant shared her back problem with about 50% of the population.  He submitted that this statistic was both irrelevant and did not constitute a proper basis for concluding that the Appellant was not disabled as defined.  He argued that, viewed in the round, the Tribunal’s decision on the question of disability concentrated wrongly on the Appellant’s current physical condition and on the Guidance.  He submitted that whatever the Tribunal’s views on the Appellant’s current condition, she clearly had a disability at the time of the alleged discriminatory act in 1998.  He was also  critical of the Tribunal’s reliance on its own observations of the Appellant and submitted that this once again demonstrated that the Tribunal was judging disability as at the date of the hearing before it, rather than at the “relevant” period.  

39	We propose to deal firstly with the submission which troubled the EAT presided over by His Honour Judge Reid and which led that Division of the EAT to allow this case to go forward to a full hearing.  Was the Tribunal assessing disability as at the date of the hearing?  If it was, Mr Morton, for the Respondent, accepted that this would be an error of law sufficient to vitiate the Tribunal’s conclusion.  

40.	We have come to the conclusion that a fair and careful reading of the Tribunal’s decision demonstrate that the Tribunal did not determine the case on the basis that the Appellant was not disabled within the meaning of the Act as at the date of the hearing.  In our view, the Tribunal was saying, with Mr Podmore, that whilst the events of 21 May 1998 had caused a severe exacerbation of the Appellant’s back condition, she had at no time been disabled between 21 May 1998 and the date of the hearing and, accordingly, had not been disabled, albeit unwell, between 21 May 1998 and 14 January 1999.

41	We have already recited the fact that the question of whether or not the Appellant was disabled within the meaning of the Act was treated by the Tribunal as a preliminary issue.  In his skeleton argument for the hearing before the Tribunal Mr Morton, for the Respondent, formulated that issue in these words:

“In order to succeed in her claim under the DDA the Applicant must first establish that at any material time between 18 May 1998 and 14 January 1999 she was a disabled person within the meaning of the Act.”

42	Mr Morton submitted that this was the only way the preliminary issue could be formulated, and accordingly when considering the question of disability, the Tribunal must have been addressing its mind to the period between those two dates.

43	Whilst we see the considerable force of this point, we repeat that it was most unfortunate that the preliminary issue was not specifically identified in an agreed document, and placed before the Tribunal as such.  Had it been, the Tribunal would undoubtedly have referred to it, and directed its mind specifically to it.  It may have been obvious to Counsel and, indeed, to the Tribunal that this was the preliminary issue, but as is so often the case, the obvious needs stating.  Whilst it can be argued that the absence of any reference to dates in the Tribunal’s reasoning mean that they themselves saw the point as too obvious to mention, the opposite can, of course, equally been argued – namely that because they do not mention the period, they were not addressing their minds to it.  

44	However, Mr Morton points to a number of factors which indicate that the Tribunal was plainly addressing its mind to the relevant period.  It was common ground between the doctors, he argues, that the Appellant was not disabled prior to May 1998, or at the date of the hearing – see paragraph 25 and the second of the four points agreed between the doctors set out at paragraph 24.  The Tribunal, when identifying the issue, makes specific reference to disability within the meaning of the Act.  This, Mr Morton argues, includes the question of time.  

45	The Tribunal was clearly entitled to prefer the evidence of Dr Podmore to that of Mr Murphy, which is what it appears to have done.  It would, however, been better had the Tribunal stated in terms that this is what it was doing.  

46	Generally, however, and reading the passages from the Tribunal Reasons which we have set out at some length, we agree with Mr Morton that a fair reading of those paragraphs demonstrates that the Tribunal was not making its assessment as at the date of the hearing:  it was, we think, reviewing the entire progress of the Appellant’s condition from 21 May 1998 to the date of the hearing.  The conclusion to which it came was that the Appellant had not been disabled within the meaning of the Act throughout that period, notwithstanding the serious injury to her back on 21 May 1998. 

47.	 As to the first of Mr Siddle’s grounds of appeal, therefore,  we have come to the conclusion that the Tribunal was entitled to conclude, on the evidence, that the Appellant did not suffer from a physical impairment which had a substantial adverse effect on her ability to carry out normal day-to-day activities.  In our view, the Tribunal applied the correct test.  As Mr Morton pointed out, the Act is not concerned with any adverse effect but rather with a substantial adverse effect.  As appears from paragraph 31 of the decision, this is the question which the Tribunal addressed.  Mr Morton accepted that where a person carries out normal day-to-day activities in pain or with difficulty, this may amount to a substantial adverse effect;  however it will not necessarily do so.  This is a matter for the Tribunal.  

48.	The Respondents accepted that the Appellant suffered from a asymptomatic degenerate spine and to that extent she suffered from a physical impairment.  The fact that the Appellant was able to manage certain tasks albeit with some difficulty is, Mr Morton submits, simply a means of expressing the view that her physical impairment had an adverse effect on her disability to carry out normal day-to-day activities, but not a substantial adverse effect.  Mr Morton submitted that this conclusion was plainly correct in the light of the Tribunal’s findings as to the ability of the Appellant to carry out day-to-day tasks.  We agree with this approach.  These were, in our judgment, all matters for the Tribunal and we can detect no error of law in the manner in which it approached them,

49	Mr Siddle relied on Goodwin v The Patent Office [1999] IRLR 4 and, in particular, paragraph 46 of the judgment of the EAT, presided over by Morison J.  With respect, we do not think this case in point.  Insofar as it may be so, however, we do not think that in this case the Tribunal fell into the error of not looking at the effect which the Appellant’s disability had on her abilities.  It seems to us that the Tribunal applied the guidelines carefully and were entitled to reach the conclusion on the evidence that the Appellant was not a person of  whom it could be said the problem she had with her back had a substantial adverse effect on her ability to carry out normal day-to-day activities.  

50.	As to the third ground, this, we think, falls away once it is established that the Tribunal was entitled to find (as it did) that the Appellant was not disabled between 21 May 1998 and the date of the hearing.  It must, inevitably, follow that in the judgment of the Tribunal she had no long-term disability.  

51	As to the fourth ground, it was, we think, for the Tribunal to assess on the facts of the case and the evidence before it what was meant by the word “substantial” in the context of this case.  The Tribunal had expressed regard to the Guidance, and in our view applied the correct test.  

52	As to the fifth ground, we do not accept Mr Siddle’s criticism of the Tribunal for taking into account the proposition advanced by Dr Murphy that 50% of the population would demonstrate degenerative spines, nor are we critical of the Tribunal for noting its own observations of the Appellant at the hearing.  In any event, as Mr Morton pointed out, neither of the matters referred to was determinative of the Tribunal’s decision.  

53	We also accept Mr Morton’s submission that the Tribunal was entitled to consider the Appellant’s condition at the date of the hearing when addressing its mind to the question of whether or not she had ever suffered substantial and long-term adverse effect.  

54	For all these reasons, we have come to the clear view that the Tribunal addressed its mind to the correct issues and time frame and was entitled on the evidence before it to reach the conclusion that the Appellant was not a disabled person within the meaning of the Act at the relevant time.  For all the reasons we have attempted to give therefore, this part of the appeal fails.

Breach of contract
55.	We can, we think, deal with the remaining aspects of the appeal more swiftly.  Mr. Siddle argued that the letter signed by the Appellant on 13 December 1994 was not a new contract,  but a notice of transfer. According to this argument, the contract of employment in force at the time of the Appellant’s complaint was that signed by the Appellant on 1 April 1981 which employed her to work as a Midwifery sister in the ante-natal clinic of Newham Maternity Hospital. Alternatively,  if the 13 December 1984 letter was a new contract of employment, it was an implied term of that contract that she would work as a ward sister in the ante-natal clinic. Either way, the Respondent was in breach of contract  in requiring her to work elsewhere. 

56.	The Tribunal rejected these arguments. In its view it was clear on the face of the documentation that in 1984 the Appellant was offered and accepted a new job and a new contract.  She proceeded to work in accordance with that contract albeit remaining within the ante-natal clinic, but there was nothing in the letter that indicated that her post was restricted to the ante-natal clinic. She could have been placed anywhere within the midwifery unit. It followed that the Respondent’s proposal to introduce a rotation scheme for staff and in which she should participate fell within the terms of her contract.

57.	We cannot fault the Tribunal’s reasoning on this part of the case. In our judgment the letter of 13 December 1984 is either a new contract or a variation on the previous contract. In either event, it plainly had the effect found by the Tribunal.  There is no error of law  and this ground of appeal fails.

Constructive Dismissal
58	Mr. Siddle argues that when considering this part of  the case, the Tribunal  failed to consider the effect of the Appellant’s illness and length of service when deciding that she had delayed too long before leaving. He also submits that the Tribunal’s finding that  the offer of employment as a bereavement counsellor was a reasonable proposal was perverse.  He submits, in the alternative, that the finding by the Tribunal that the Respondent would have been entitled to dismiss the Appellant “for some other substantial reason” was also perverse.

59.	It seems to us, with respect to Mr. Siddle, that this part of the case is virtually unarguable once it is accepted that the Respondent was not in fundamental breach of contract in requiring the Appellant to move to the Central Delivery Suite on 18 May 1998. In any event, a fundamental breach of contract by the employer requires a reasonably swift response from the employee. Here,  there was plainly material upon which the Tribunal could find as  it did, that the Appellant delayed too long before leaving her employment. It was also open to the Tribunal on the evidence to find that  the Respondent behaved reasonably in seeking to accommodate the Appellant,  and whilst the post of bereavement counsellor may not have been the most suitable, the Tribunal’s finding that it was a reasonable proposal is clearly not perverse.  Equally, it was, in our judgment, open to the Tribunal to find that the dismissal would have been fair in any event. There was evidence of poor clinical practices and the need to correct them.

60.	In our judgment, therefore, none of the grounds set out in the Notice of Appeal succeeds, and the appeal will be dismissed.