Kirton v Tetrosyl Ltd.

©Crown Copyright

LORD JUSTICE PILL:

1. This is an appeal against a judgment of the Employment Appeal Tribunal dated 23rd August 2002, whereby they dismissed an appeal against the decision of an Employment Tribunal held at Manchester on 24th January 2001 that Mr D H Kirton (“the appellant”) was not a disabled person for the purposes of the Disability Discrimination Act 1995 (“the 1995 Act”). The appellant made several complaints against his employers, Tetrosyl Limited (“the respondents”), including a complaint of disability discrimination. It was directed by the Employment Tribunal, with the consent of the parties, that the issue whether the appellant is a disabled person be tried as a preliminary issue.

2. In October 1999 the appellant, then in his late 50s, was diagnosed as having a carcinoma of the prostate. The cancer was asymptomatic and has remained so. In December 1999 the appellant underwent a radical retropubic prostatectomy and pelvic node clearance. Since the operation the appellant has suffered from urinary incontinence, which is likely to be due to a sphincter deficiency which is a direct consequence of the operation. It occurs in between 10 per cent and 40 per cent of cases after radical prostatectomy.

3. The Employment Tribunal heard medical evidence as to the seriousness and effects of the urinary incontinence. The joint medical opinion was that the incontinence was not considered to be substantial. The tribunal, having conducted its own analysis of the evidence, concluded that the incontinence did not have a “substantial adverse effect on [the appellant's] ability to carry out normal day-to-day activities”. It was not satisfied that “by reason of [the appellant's] weakened sphincter muscle and his resultant incontinence ... he is a disabled person within section 1(1) of the 1995 Act”. That finding is not challenged in this appeal. The condition of urinary incontinence is static.

4. The medical evidence was that the cancer persisted in the body, though it did not manifest itself symptomatically. The cancer was likely to spread from the region of the prostate in the years ahead. Distant spread was likely in the next four to six years and the appellant had a life expectancy in the region of six to eight years. It was submitted that the appellant was a disabled person for the purposes of the 1995 Act by virtue of the provision dealing with progressive conditions.

5. Section 1(1) of the 1995 Act provides:

“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.”

Paragraph 8(1) of Schedule 1 to the Act provides:

“Where -

(a)a person has a progressive condition (such as cancer, multiple sclerosis or muscular dystrophy or infection by the human immunodeficiency virus),

(b)as a result of that condition, he has an impairment which has (or had) an effect on his ability to carry out normal day-to-day activities, but

(c)that effect is not (or was not) a substantial adverse effect,

he shall be taken to have an impairment which has such a substantial adverse effect if the condition is likely to result in his having such an impairment.”

6. While indicating that they would have preferred to have heard evidence on the issue, the tribunal stated that they were prepared to infer that the prostate cancer is likely to result in the appellant having an impairment which has a substantial effect on his ability to carry out his normal day-to-day activities. That was an unsurprising inference.

7. Under section 3 of the 1995 Act the Secretary of State has issued guidance which includes, at A15:

“Where a person has a progressive condition, he or she will be treated as having an impairment which has a substantial adverse effect from the moment any impairment resulting from that condition first has some effect on ability to carry out normal day-to-day activities. The effect need not be continuous and need not be substantial.”

8. The purpose of paragraph 8 is to protect an employee with a progressive condition to the extent specified in the paragraph. Parliament had to consider the moment at which such protection was to be given. The moment of diagnosis of the progressive condition was not chosen. The paragraph provides that, from the moment the conditions (a) and (b) in the paragraph are satisfied, no sooner and no later, the employee has the statutory protection afforded to disabled persons.

9. It should be noted that Schedule 1 is explanatory of section 1 of the Act and interprets and explains the effect of the concept set out in section 1, dealing not only with progressive conditions, but also with issues such as what is included within mental impairment and what is a long-term adverse effect.

10. In a carefully drafted conclusion as to the effect of paragraph 8(1), the Employment Tribunal stated:

“We are satisfied that the words `as a result of that condition' must mean as a direct result of the condition rather than as an indirect result of the condition. Thus, although the operation would not have been carried out if the applicant had not been suffering from cancer, we do not find that the side effects or consequences of the operation can properly be said to be as a result of his condition. We do not find that it would be appropriate for us to apply a `but for' test or to add after the words `as a result of that condition' in subparagraph 8(1) the additional words `or any treatment for that condition'. If Parliament had wished to include not only the condition but also any treatment for the condition within this subparagraph, it would no doubt have done so. Having regard to the clear wording of the subparagraph we do not find that the applicant's weakened sphincter muscle and his incontinence is, or his post-operative pain and suffering was, as a result of his condition, namely prostate cancer, but rather they are and were as a result of the operation he underwent.”

11. The Employment Appeal Tribunal upheld that conclusion, stating, with equal clarity:

“Paragraph 8 is triggered by a person with a progressive condition starting to have an impairment. A person who suffers an existing but not substantial impairment from a progressive condition falls within the ambit of paragraph 8. A person who suffers an existing substantial impairment resulting not from a progressive condition but from treatment for it does not need to rely on paragraph 8. A person who has an as yet asymptomatic progressive condition does not fall within the ambit of paragraph 8 and does not receive any other special protection from the Act, no matter how dire the prognosis. It would be anomalous if a person suffering some very minor impairment, but in remission as the result of apparently successful treatment for a cancer, had the protection of paragraph 8 whereas the presently asymptomatic person with a condition almost certain to prove fatal in the future treatment did not. In our view Mr Kirton's present impairment is as a result of the surgery he underwent and not as a result of the condition within the meaning of paragraph 8.”

12. The following is common ground:

(a)the appellant has a progressive condition within the meaning of paragraph 8(1)(a);

(b)the urinary incontinence is an impairment which does have “an effect” on the appellant's ability to carry out normal day-to-day activities within the meaning of paragraph 8(1)(b);

(c)that effect is not a substantial adverse effect within the meaning of paragraph 8(1)(c).

(d)the “impairment ... likely to result”, for the purposes of the closing words of the paragraph, results from the “progressive condition” and not from the “impairment” currently sustained.

Both tribunals found that the “impairment” present for the purposes of subparagraph (b) does not result from the “progressive condition” in subparagraph (a).

13. For the appellant, Mr Allen QC submitted that to find that the current impairment was not the result of cancer was to take too limited a view of paragraph 8. If medical intervention was required because of the cancer, if an impairment has resulted from the intervention, and if the condition is likely to result in an impairment which has had a substantial adverse effect, the requirements of the paragraph are satisfied. If Parliament had intended to exclude impairments which were the result of the treatment for a condition, it would have said so. Paragraph 8(1)(b) provides the trigger which brings the provisions into operation. The effect of the paragraph is that protection occurs from the moment symptoms appear.

14. For the respondents, Mr McDermott QC submitted that paragraph 8 covers the situation in which the subparagraph (a) condition (cancer) causes the subparagraph (b) impairment, but does not cover a subparagraph (b) impairment (in this case, urinary incontinence) which results from treatment for the subparagraph (a) condition. Had the broader meaning been intended, appropriate words would have been included in the paragraph. Further and alternatively, the “impairment ... likely to result” contemplated in the closing words of the paragraph must be the same impairment as that now present in a lesser form under subparagraph (b). In this case, the subparagraph (b) impairment (urinary incontinence) is static and will not result in an impairment having a substantial adverse effect. The impairment which will occur, whatever form it takes, must be (but in this case is not) related to the subparagraph (b) impairment. If the creation of the protection is linked to the development of symptoms, as Parliament has decided, those symptoms must be the symptoms of the condition itself. The urinary incontinence is nothing to do with the progressive condition. There would be no claim but for the urinary incontinence which exists, and that impairment is unrelated to the progressive condition. In construing the paragraph the court should keep its eye on the progressive condition and not on incidental side effects which would not have triggered that condition. Mr McDermott poses the question: what category of persons does Parliament intend to protect? It is those persons with progressive disease. The closing words of the paragraph are not triggered by the urinary incontinence which is the present impairment.

15. Reference was made to the speech of Lord Hoffmann in Environmental Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22. That was a case where a river was polluted and the issue was as to whether the appellants had caused that pollution. The court has to consider causation in this case, a question which comes up in many branches of the law, and the present context, of course, is entirely different from that in Empress Cars. Lord Hoffmann did, however, make general observations as to the manner in which a court should approach the resolution of issues of causation, referring first to the traditional common sense view of causation, but stating, at p.29F:

“The first point to emphasise is that common sense answers to questions of causation will differ according to the purpose for which the question is asked. Questions of causation often arise for the purpose of attributing responsibility to someone, for example, so as to blame him for something which has happened or to make him guilty of an offence or liable in damages.”

At p.30A Lord Hoffmann said:

“... there may be different answers when attributing responsibility to different people under the same rule.”

At p.30F he added:

“The fact that for different purposes or even for the same purpose one could also say that someone or something else caused the pollution is not inconsistent with the defendant having caused it.”

16. I would keep in mind the purpose of the current statute in construing the words “as a result of that condition” in this case. In deciding the extent of the protection to be given to disabled people, Parliament had to make a series of policy decisions, and those are reflected in the provisions of Schedule 1, which explain and elaborate upon the general definition in section 1. In my judgment, the court's task is to construe the words “as a result of that condition” in paragraph 8(1)(b). The remaining provisions of the paragraph may throw light on that question, but in the end it is that expression which has to be construed. I bear in mind that the primary purpose of the paragraph is, as Mr McDermott submits, the protection of disabled people who have progressive conditions from the moment when symptoms first appear.

17. I have come to the conclusion that, on the facts of this case, the present subparagraph (b) impairment (urinary incontinence) does result from the subparagraph (a) condition (cancer) within the meaning of paragraph 8. The surgery conducted was a standard response to the discovery of the condition. Whenever such surgery is conducted there is a real possibility (put at between 10 and 40 per cent) that a sphincter deficiency, with urinary incontinence, will result. In those circumstances the impairment in this context is a result of the cancer, notwithstanding the intervening act of the surgical treatment of the cancer. In this context the word “result” should not be so narrowly construed as to exclude an impairment which results from a standard and common form of operative procedure for the cancer.

18. In my judgment, that construction is achieved without the need to insert the words “or treatment of it” after “condition” in subparagraph (a). On the evidence, the symptoms (urinary incontinence) would not have developed but for the surgery, but they are sufficiently linked with the cancer, by reason of the surgery the cancer made necessary, to result from it within the meaning of subparagraph (a). In cases with other medical scenarios, the result could well be different.

19. In reaching that conclusion I have borne in mind Mr McDermott's submission that the closing words of the paragraph are not triggered in the circumstances. In my judgment, nothing in the wording of the paragraph justifies its construction in any other way than that of following systematically through its provisions and reaching a result. I see no justification for excluding the operation of the closing words of the paragraph because the condition or impairment in subparagraph (b) is of a different kind and with different symptoms from the condition and impairment contemplated in the closing words. The condition (cancer) is likely to result in an impairment having a substantial adverse effect within the meaning of those words. Nor do I see merit in the similar argument that the closing words could not cover the present situation because of the difference between the current impairment and the symptoms which are likely in the future. In my judgment, nothing in the wording of the paragraph excuses the court from the crucial task of construing the words “as a result of that condition” in the medical and factual context present.

20. I have hesitated before disagreeing with the reasoned and clear conclusions of both the Employment Tribunal and the Employment Appeal Tribunal and also with the persuasive submissions of Mr McDermott. However, for the reasons I have given I have come to the conclusion that this appeal should be allowed.

LORD JUSTICE SCOTT BAKER:

21. I agree. I too have not found this case an entirely easy one.

22. The purpose of paragraph 8 of Schedule 1 to the 1995 Act is to bring within the ambit of the protection of the Act those who have a progressive condition which would not otherwise be covered by section 1. This is important because an employer might be tempted to discriminate against an employee who, although not presently disabled to the point of the disability affecting his ability to do his job, was likely to become so in the future. Symptomless conditions do not fall within the Act. The trigger is that the individual has an impairment which has (or had) an effect on his ability to carry out normal day-to-day activities and which is likely to get worse, to the point where it has a substantially adverse effect.

23. The problem arises because of the words in paragraph 8(1)(b) “as a result of that condition”. This is a phrase which, in my judgment, means what it says. The cancer led to, or caused, the incontinence that flowed from the prostatectomy. The impairment was something that followed in the ordinary course of events from this disease. The standard treatment offered for this type of prostate cancer is this operation, and the type of sequelae with which the appellant was left are routinely to be expected. They occur, as my Lord said, in 10 to 40 per cent of cases.

24. In my judgment, the words “as a result of that condition, he has an impairment” do not mean that the impairment only includes symptoms that are immediately referable to the cancer. “Impairment” in this context also includes the ordinary consequences of an operation to relieve the disease. I appreciate the argument that, if the consequences of the operation were sufficiently serious, the appellant would have a free-standing right to be classified as disabled. The fact that it is not the appellant's present symptoms that are likely to get worse, but his underlying disease of cancer, is not, in my judgment, a good reason for concluding that paragraph 8 does not apply.

25. I see no reason to adopt a narrow or restrictive construction of the words “as a result of that condition” in subparagraph (b). In my judgment, the section is wide enough to encompass the circumstances of the present case. Accordingly, I too would allow the appeal.

MR JUSTICE WILSON:

26. I agree with both judgments.

Order: appeal allowed and matter remitted to the Employment Tribunal for them to proceed on the basis that the appellant is disabled within the meaning of the Act; costs to be paid as agreed between the parties; permission to appeal to the House of Lords refused.