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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ministry of Defence v. Hay [2008] UKEAT 0571_07_2107 (21 July 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0571_07_2107.html Cite as: [2008] UKEAT 0571_07_2107, [2008] ICR 1247, [2008] UKEAT 571_7_2107, [2008] IRLR 928

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APPEARANCES

 

For the Appellant	MR ADAM TOLLEY (of Counsel) Instructed by: The Treasury Solicitor (Employment Team) One Kemble Street London WC2B 4TS
For the Respondent	MS K NEWTON (of Counsel) Instructed by: Messrs David Downton & Co Solicitors Harefield Chambers 2 Brook Farm Northampton Road Milton Keynes Buckinghamshire MK19 7BB


 


SUMMARY

DISABILITY DISCRIMINATION: Disability

PRACTICE AND PROCEDURE

The issue for the Employment Tribunal was whether the claimant had suffered from an impairment which had a substantial adverse effect on his day to day activities for over 12 months. He had answered a question by the respondent (pre-hearing) as to what precisely his disability was by saying that he suffered from "TB". Expert medical evidence was that impairments attributable to tuberculosis alone would have lasted for less than 12 months. Despite this, it was held that an employment tribunal was entitled to hold that he was disabled by reason of a constellation of symptoms not medically attributed to TB, which lasted over a year. An argument based on Chapman v Simon that it was outwith its jurisdiction or procedurally unfair to the respondent for the Tribunal to determine this, because in the light of the claimant's answer to the respondent's question such a case had not been advanced before it, was rejected.


 


THE HONOURABLE MR JUSTICE LANGSTAFF

1. This appeal from a decision of an Employment Tribunal at Reading on a preliminary issues raises the question whether, when a claimant alleging disability discrimination answered a question by the Respondent as to what precisely his disability was by saying that he suffered from "TB", and where expert medical evidence was that impairments attributable to tuberculosis alone would have lasted for less than 12 months, an employment tribunal was entitled to hold that he was nonetheless disabled by reason of a constellation of symptoms not medically attributed to TB. Involved in the determination of this issue in this case is also (a) a consideration of what it is that, for the purposes of the Disability Discrimination Act 1995, constitutes a disability where there are distinct sequential impairments which overlap chronologically in their onset, in time, and (b) what a fair procedure before the tribunal demands.
2. The issue for determination by the Tribunal, which it decided in favour of the employee, was whether or not the Claimant was disabled.
3. The facts found by the Tribunal in its reasons promulgated on 1 October 2007 were, in essence, these. The Claimant was absent from his work as a civilian security officer from 11 June 2004 until he was dismissed on 31 March 2006. In June 2004, he could not get through a night shift without falling asleep. In the latter half of 2004, into 2005, he would regularly fall down through faintness when standing up from a sitting or lying position. By the summer of 2005 he fell down whilst walking around generally, and experienced blackouts. He could not drive a car for more than a quarter of an hour, due to tiredness. In April 2005 his appetite was reduced, such that he began to lose weight. By September 2005 it had fallen to only 6 stones. He suffered night sweats in June 2004, which got worse such that by September 2005 he could not sleep for more than about 3 to 4 hours without waking up drenched.
4. On 14 September 2005 he entered hospital following a 4 week history of falls, and a 5 week history of night sweats. Although his chest was seen to be clear at the time, he was diagnosed on the 5 October 2005 as suffering from TB. He was given medication. He stopped taking it in December 2005, with the consequence that his treatment programme had to begin again and his eventual recovery was delayed.
5. Finally, at a clinical review on 11 July 2006 he was discharged from further treatment. His panoply of problems has not recurred since.
6. The non-respiratory complaints from which the Claimant suffered were catalogued in an expert report provided by a Professor Douglas. The focus of that report was on TB, but it noted records of complaints of general weakness, inability to digest food, lack of appetite, nausea, night sweats, passing out/blackouts, falls, lethargy, and swollen ankles, and recorded admissions to hospital for palpitations and shortness of breath (December 2004), confirmed jaundice and urine problems (April 2005), end-stage alcoholic liver disease (May 2005), and anaemia (September 2005) as well as for some suspected conditions: lung cancer, pneumonia, klebsiella and "staphylococcus".
7. The Tribunal had the task of applying the relevant statutory law to the facts it had found. Section 1 (1) of the Disability Discrimination Act 1995 provides that a person has a disability for the purposes of that Act if he has a "physical or mental impairment which has a substantial and long-term adverse affect on his ability to carry out normal day-to day activities". The definition is subject to supplementary provisions in Schedule 1 of the Act, paragraph 2 of which 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(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."

8. It is 2(1)(a) which is relevant, in that the Tribunal found that the impairment had ceased, and was not likely to recur, though possible it might. (No point arises on this).
9. What follows concerns the application of this law to the facts of this case. For this, it may be useful to note that a "disability" is not the same as an "impairment". If a person has a physical or mental impairment, which has a substantial and long term adverse affect on his ability to carry out normal day to day activities, then he has a disability. "Substantial" means more than minimal. "Long-term" is dealt with by paragraph 2 of Schedule 1. Normal day to day activities are listed (paragraph 4 of Schedule 1) as falling into eight categories, all of which describe particular functions. The statutory approach is self evidently a functional one directed towards what a claimant cannot, or can no longer, do at a practical level. This functional approach underpins the Act: for instance, it is essentially to function that the provisions requiring employers to make reasonable adjustments are directed. (See also, for current cases, guidance issued by the Secretary of State for Work and Pensions on 29 March 2006, under the Disability Discrimination Act 1995 Section 3(8) on matters to be taken into account in determining questions relating to the definition of disability: in particular paragraphs A4 to A8, which emphasise that it is the effect of an impairment which should be the primary focus, not its categorisation (see A7) or its cause (see A8)). The Tribunal's references (at paragraph 15.3) to the earlier 1996 Guidance are to paragraphs to the same effect in guidance which remained relevant for this particular case, because the complaint arose prior to 1 May 2006. The point which arises is the same, and we mention the current guidance only in case this decision is later relied on by others.)
10. The Tribunal found (paragraph 15.6) that the Claimant had more than one impairment. He suffered from a broad spectrum of non-respiratory complaints. If each impairment was taken individually, it, alone, would not have had a substantial effect upon the Claimant's normal day to day activities until the early summer of 2005. However, the Tribunal concluded that taken together the impairments had such a substantial effect. Professor Douglas had given evidence before the Tribunal that TB would have been clinically manifest from about the first or second week of August 2005, but at that time unlikely to represent a substantial adverse effect on his day to living (although that followed). The Tribunal took the view that there had been a continuum of impairments which together had a substantial effect on the claimant's ability to carry out normal day to day activities.
11. For the resolution of the issues in this case, enlarged upon below, it is necessary to set out first the words the Tribunal used in expressing its conclusion, and then the words it used to set out its approach to drawing that conclusion. Its conclusion was at paragraph 15.10:

"We therefore conclude that the claimant suffered from a range of impairments, starting in about June 2004, which cumulatively had an overall substantial effect on his ability to carry out normal day to day activities. They included general weakness, an inability to digest food and lack of appetite, nausea, night sweats, passing out/blackouts, falls, lethargy and swollen ankles. By early summer 2005 (and before mid-July 2005), they individually had a substantial effect on his ability to carry out normal day to day activities. It is not necessary for us to conclude whether they were caused by TB, alcohol dependency or some other of the many conditions he either had (jaundice, urine problems, liver disease and anaemia) or was suspected to have… The crucial point is that the claimant was unwell in both 2004 and 2005, long before TB was diagnosed, and these impairments together had a substantial adverse effect."

12. The approach was set out at paragraph 15.3:

"On reaching our conclusion, we have been reluctant to be bound by the labels that the claimant's medical advisors were putting on his health difficulties. Professor Douglas focuses primarily on when, in his opinion, the claimant first contacted TB prior to the actual date of diagnosis. In our view this is not the correct approach. The correct approach is to take evidence of the claimant's health "in the round", looking at all the symptoms from which he was suffering, and base our conclusion on the start date of his disability on the point at which they began to have "a more than minor or trivial" adverse effect on his ability to carryout normal day to day activities. This is consistent with the 1996 guidance, paragraphs A4-A6 of which prompts us to consider the cumulative effects of one or more impairments."

Grounds of Appeal

13. The grounds of appeal did not suggest that the Tribunal would have been in error in considering the cumulative effects of a range of impairments had it not been for what happened procedurally. The principal focus of the appeal was that the Tribunal found that the Claimant was disabled on a basis different from that which he had advanced prior to, and at, the hearing. The Appellant claimed that the Claimant had confined his case on disability to tuberculosis as the sole relevant impairment. Thus it submitted that to approach the case as the Tribunal did was to act contrary to the principle identified in Chapman v Simon [1994] IRLR 124, C.A. In that case, Ms Simon complained in her originating application of three sets of facts which she said constituted discrimination against her contrary to the Race Relations Act 1976. In its decision, the tribunal expressed itself "greatly concerned" about another matter in respect of which there had been no complaint by Ms Simon. It found in her favour because of this. The Court of Appeal held that the jurisdiction of an Industrial Tribunal (as it then was) was limited to complaints made to it. Since no complaint was ever made by Ms Simon relating to the matters which the tribunal found to have constituted racial discrimination, the respondents' appeal had to be allowed.
14. In the light of this, the submissions before us concentrated on whether the complainant had succeeded on a claim which he had in fact made. The appellant said he had not made it; he argued that he had.
15. The relevant history of the claim is this. In his originating application, the Claimant said (at paragraph 8)

"The claimant contends that he has a disability within the meaning of the Disability Discrimination Act, that he suffered from depression, in 2004 had liver and kidney failure and malnutrition and by October 2005 was diagnosed as having contracted TB and was treated for TB. The claimant is advised that he will suffer symptoms resulting from the contraction of TB throughout the rest of his life."

16. The response admitted that the Claimant had been dismissed by reason of capability due (it said) to unacceptable levels of sickness absence. It recorded that the Claimant had been absent from work, purportedly sick, from 11 June 2004 to 31 March 2006. However, it denied that he was disabled within the meaning of the Act.
17. In a request for further and better particulars of the claim the Respondent posed the following questions amongst others:-

"1. Please state the exact nature of your alleged disability?

2. Please state when your alleged disability was first diagnosed and by whom?"

18. The answers the Claimant gave to these questions were:-

"1. Tuberculosis.

2. October 4^th 2005, Doctor R. Davis, Osler Clinic, Churchill Hospital Oxford."

19. It is trite, however, that a document must be read as a whole. In answer to a later question, asked as part of the same request, the Claimant commented in the same reply:-

"My circumstances – Tuberculosis – is wholly unique and I know of no U.K. – based M.O.D. employee who has contracted Tuberculosis or had a long ordeal of waiting for a true diagnosis viz June 2004 to October 2005." [Our emphasis]

20. A pre-hearing review was held on 11 January 2007. The Claimant attended that in person. This identified the issues to be decided. The Tribunal recorded (at (2) of its decision on this pre-hearing):-

"The claimant asserts that he was diagnosed as suffering from Tuberculosis on 4^th October 2005. The crux of the claimant's case is that the respondent did not do what it could to accommodate that disability…"

21. At (4) the Chairman noted:-

"The respondent questions whether the claimant was suffering from tuberculosis, as he asserts, and, if he was suffering from that illness, do not accept that it necessarily amounted to a disability under the terms of the Act and, in particular, question whether it had a substantial or long-term affect (sic) on his day to day activities as defined by the Act"

22. The directions went on to make provision for the report of a medical expert. That medical expert was Professor Douglas, instructed by the Respondent. His report of 20 July 2007 was expressly based upon medical records relating to tuberculosis only. The Professor followed this with a supplementary report of 18 August 2007. Again, this focussed upon disability in relation to tuberculosis only. It did, however, copy a number of entries in the medical records which predated the diagnosis of TB. These referred to palpitations, alcohol, swollen ankles, jaundice, and urinary problems. There was evidence of a chest infection in April 2005. A history of falls and general weakness was recorded. So, too, was the Claimant's suffering from night sweats. The suspected diagnosis had shifted from one of lung cancer to tuberculosis. Focusing, however, upon tuberculosis only, Professor Douglas said (page 17, second report) that the records indicated that the Claimant had tuberculosis as a clinical manifestation from about the first or second week of August 2005, which was unlikely to represent a substantial adverse effect on his day to day living at that time.
23. In his witness statement for the purpose of the proceedings, disclosed to the Respondent before the hearing, the Claimant alleged that the disability was "that brought about by Tuberculosis" (paragraph 3). He expanded upon this, however, to say that :-

"…my symptoms first appeared in June 2004. At that time I was suffering from weakness, and inability to digest food and lack of appetite, I was not getting a good night's sleep, I suffered from night sweats, passing out/blackouts every three to four days and lethargy. I visited my G.P. At one stage it was thought that I might have pneumonia and I received treatment for this. At another stage it was thought that I might have lung cancer and this was therefore investigated. It was only in October 2005 that a diagnosis was made and treatment commenced."

24. The Tribunal said at paragraph 7 of its written reasons that:-

"The alleged disability in this case is Tuberculosis (TB) and its related effects; the precise diagnosis given by the claimant's treating physician was "fully sensitive pulmonary mycobacterium tuberculosis and cavitating lung disease". For reasons set out below, however, we have been cautious about being bound by medical labels and note that, in his ET1 claim form, the claimant referred not just to TB but also to depression, liver and kidney failure and malnutrition."

25. The "reasons set out below" included those at paragraph 13.2:-

"When considering the start date of the disabling symptoms, we are not concerned simply with the date of diagnosis of TB. It is plain that, given the clinical history.., the claimant's health had been of significant concern to his medical advisers for a considerable time…"

26. The Tribunal subsequently noted that the symptoms and difficulties from which it found the Claimant to have suffered had disappeared following his recovery from TB.
27. Adopting the approach which it had identified at paragraph 15.3 (the correctness of which is questioned on this appeal), the Tribunal found (paragraph 15.10) that it was not necessary to conclude whether the disabilities had been caused by TB or some other of the many conditions that the Claimant had had.
28. At the Tribunal itself, the Respondent made a submission similar to that which it makes on this appeal. It appears that, referring to the case management discussion of 11 January 2007, the Respondent objected that the Claimant was complaining when before the Tribunal not just of "TB" but "TB and its associated effects and symptoms". The Tribunal recorded the Respondent as having submitted that "…having 'set out his stall' on the basis of TB being his disability, it was unreasonable for the Claimant to rely upon non-respiratory complaints." However, as we understand the submission as repeated to us, it was not a question of reasonableness, but a question of jurisdiction.
29. The Tribunal's answer was this (at paragraph 15.9):-

"We do not consider that the claimant has acted unreasonably in seeking to rely on TB in the way he has done. He is not a medical man and, at the CMD when he "set out his stall" he was not legally represented. The claimant has consistently taken the approach that he was relying on what he had considered to be the symptoms of TB prior to its diagnosis, symptoms which he considered included non-respiratory complaints."

30. The Tribunal went on to note that symptoms which might be described as non-respiratory, such as fatigue, loss of appetite and night sweats were in fact well recognised symptoms of TB. The Tribunal did not itself purport to suggest they were, in this case, such symptoms, but only that it was understandable that the Claimant had thought they were.

Submissions

31. On the central point of this appeal, Mr Tolley (who did not appear below) for the appellant employer, relied upon the principle in Chapman v. Simon, and complained that the approach taken by the Tribunal was such as to work a substantial injustice on the employer because no case that Mr Hay was suffering from a disability prior to July 2005 on the basis of a "range of impairments" had ever been advanced.
32. As a second ground of the appeal (though the first numerically) Mr Tolley complained that the Tribunal had misdirected itself in asking whether the Claimant was disabled on the basis of the material available by the time of the hearing, whereas it ought to have asked that question on the basis of the material available at the earlier time of the alleged acts of discrimination. For this proposition, he relied upon the recent Court of Appeal decision in McDougall .v. Richmond Adult Community College [2008] EWCA Civ 8; [2008] IRLR 227; [2008] ICR 431. The tribunal there had had to consider the effect of paragraph 2 of Schedule 1 to the 1995 Act. Sub paragraph 2 deals with a case in which the substantial adverse effect of an impairment is likely to recur, although at the relevant time it has ceased. The claimant in that case had mental health difficulties. After the date relevant for the act of discrimination, she suffered a relapse and was admitted to hospital. The tribunal had no regard to this relapse in determining that the impairment had no substantial long-term effect. The Employment Appeal Tribunal held that was a wrong approach, and reversed the ruling. The Court of Appeal allowed an appeal against the decision of the EAT. The principle is that the decision that may later form the basis for a complaint to an employment tribunal is inevitably taken on the basis of the evidence available at that time. Thus it is on the basis of that evidence that an employment tribunal should make its judgment. As Rimer L.J. said:-

"(The question) had to be answered exclusively by reference to evidence relating to the then likelihood of such recurrence. In short, the Statute requires a prophecy to be made. It does not permit recourse to evidence as to subsequent events."

33. Mr Tolley objects that the Tribunal here answered the question whether the Claimant was disabled on the basis of all the material available to it by the time of the hearing before it rather than on the basis of the material available at the time of the alleged acts of discrimination.
34. For the Respondent, Ms Newton not only highlighted what the Claimant had said in his originating application, his answer to the request for particulars, his witness statement, and his evidence, but drew attention also to the fact that in the bundle for hearing there was a letter he had written to his own consultant in 2006 plainly conveying his understanding that his symptoms (of blackouts, weight loss etc) were associated with TB.
35. As to McDougall, she submitted that the principle had no application to a case such as the present. This was not a case in which the claimant was (now) placing reliance upon the current likelihood of recurrence of his condition to establish that he was disabled at the time of the alleged discrimination. Indeed, the Tribunal had expressly found that his condition was not likely to recur (it was possible it might, but not likely that it would). His was a case in which he had complained at the time of suffering a range of symptoms (he was "off sick" from June 2004 throughout the relevant period). The sole question was whether, on the evidence, that was because of a condition or conditions which amounted to a disability within the meaning of the Act.
36. In the course of submissions, it became apparent that something might turn upon the meaning of the word "impairment". It is not defined by the Statute. If "impairment" were to be equated with "clinical condition", and were a medical rather than a functional concept, there might be more to be said for the Appellant's case. Counsel referred to case law without then having it available, and accordingly we invited further written submissions after they had considered the relevant law in greater detail. Those written submissions centred on two appellate decisions. In McNicol v. Balfour Beatty [2002] EWCA Civ 1074; [2002] ICR 1498 the court considered the case of a claimant who said he was disabled, suffering from back pain. No medical evidence established any physical cause for it. Nor was any evidence adduced to establish that it was the result of, or consistent with, a clinically well recognised mental illness (that then being required by the Statute, as it is no longer) or that it constituted a functional or psychological overlay. He claimed "a compression injury" to his spine. Since the Tribunal accepted the evidence of a doctor that there was no physical impairment, it could only have determined that the claimant suffered a disability if he had (on the law as it then stood) a clinically well recognised mental illness. That necessarily would have required medical evidence. There was none. The Claimant was bound to fail. Functional overlay did not amount to a physical impairment. The Court of Appeal determined that the tribunal was entitled to reach the conclusion it did.
37. Although in the report at [2002] ICR 1498 the head note suggests that observations as to the meaning of "impairment" were part of the ratio, we do not think in the light of the issues in the case that they were. Nonetheless, they are powerfully persuasive and in our view even if we are not bound by them they are plainly right. They were that the approach of a tribunal should be that the term "impairment" bears its ordinary and natural meaning. It may be an illness. It may result from an illness. It is not necessary to consider the cause of it. The observations of Lindsay J. in College of Ripon and York St John v Hobbs [2002] IRLR 185, 188 at paragraph 32 are to be endorsed:

"Nor does anything in the Act or Guidance expressly require that the primary task of the ascertainment of the presence or absence of physical impairment has to, or is likely to, involve any distinctions, scrupulously to be observed, between an underlying fault, short-coming or default of or in the body on the one hand and evidence of the manifestations or effects thereof on the other. The Act contemplates… that an impairment can be something that results from an illness as opposed to itself being the illness - Schedule 1 paragraph 1(1). It can thus be cause or effect. No rigid distinction seems to be insisted on and the blurring which occurs in ordinary usage would seem to be something the Act is prepared to tolerate."

38. Mummery LJ. observed (at paragraph 19):

"The essential question in each case is whether, on sensible interpretation of the relevant evidence, including the expert medical evidence and reasonable inferences that can be made from all the evidence, the applicant can fairly be described as having a physical or mental impairment. The ordinary meaning of the statutory language and of the Guidance issued by the Secretary of State under Section 3(1) is sufficiently clear to enable the tribunal to answer the question on the basis of the evidence."

39. Mr Tolley draws attention to paragraph 16 of the judgment of Mummery LJ. He said there that "...the appeal highlighted the crucial importance of applicants making clear the nature of the impairment on which the claim of discrimination was advanced. A directions hearing should be held by the Chairman of the tribunal to clarify the issues and to ascertain the nature of the evidence which the parties intended to adduce."
40. He submitted that insofar as the Claimant had provided clarity it was to define his disability as "TB" at just such a directions hearing.
41. Ms Newton notes that in the light of the approach in Hobbs, endorsed in McNicol, the complaints made by the Claimant as to what he had suffered were all capable of being impairments. It was not necessary to be able to ascribe a precise medical cause for each of them in order to categorise them as such.
42. She further pointed out that, as is plain from the Tribunal's decision, the issue as to whether the Tribunal was entitled to consider symptoms which went beyond the medical definition of TB, and encompassed the Claimant's own lay approach to that which he labelled "TB", was live at the hearing. The Claimant relied on more than that which was strictly clinically established TB. At paragraph 12 the Tribunal records that it invited the parties to consider whether the Claimant's assertions about prior visits to his doctor might be corroborated, or undermined, by reference to the medical notes, and (in effect) whether either party wished an adjournment to obtain and consider these in greater detail than was provided by the reports of Professor Douglas. The Tribunal was thus indicating it thought these "prior" visits potentially relevant to the issues it had to determine. The relevance of these visits can only have been to a consideration of whether the Claimant was subject to an impairment or impairments when he then visited the doctor. It was the case, therefore, that the appellant employer was offered the opportunity of an adjournment, knowing how the Claimant was putting his case, if it wished it. The employer was content to proceed.

Discussion

43. If a hearing is to be fair, each party must be aware of the principal allegations to be made by the other, and have a reasonable opportunity of meeting them. It is entirely wrong (for instance) for a tribunal to determine a case upon a matter which has not been argued before it (as it appears happened in Chapman v Simon). It cannot, however, be the case that a party's contentions are frozen artificially yet definitively at some time prior to the hearing. Thus the rules make provision for the amendment of an originating application or, as the case may be, a defence to it. It is often desirable for the sake of clarity that there should be a formal amendment. However, where the position is one in which there is no frank change to an existing claim, nor fresh claim, arising out of the same facts, being made but instead a resolution of an existing confusion, or a clarification of that which has been said, we think that to require a formal amendment as a matter of jurisdiction is to insist upon excessive formalism. Thus, if another incident is complained of in a discrimination case beyond those the facts of which already have been outlined, an amendment will usually be necessary before a tribunal can consider it (Chapman v Simon is authority for this). In other cases, however, what is required is expansion of that which has already been said. If, reasonably viewed, this puts the opposite party at a disadvantage then a tribunal will consider whether or not to grant an adjournment, which would normally resolve any prejudice there might be. The purpose of a hearing, after all, is to allow the parties to resolve those matters which are truly in dispute between them, at least where this can be done without unfair prejudice to the position of either. Thus if a respondent justifiably complained that there was a lack of clarity in a claimant's originating application, then (depending of course, on the circumstances) an adjournment might well resolve any prejudice. The focus will be on whether a fair trial of the issues (as expanded) can take place.
44. Here, no jurisdictional point really arises. The originating application relied upon a number of symptoms (paragraph 8) suffered from 2004. The words used there list a number of impairments (adopting the approach to "impairment" indicated by Hobbs and McNicol) albeit they are associated as being effects of, or preliminaries to, TB itself. Thus the claim was one which on paper permitted the Tribunal to make the findings it did.
45. We do not consider that the answer to the request for further and better particulars altered this position. The first of the two questions was inept. What was troubling the Respondent was not the exact nature of the "disability", but the precise identification of the impairment, as it had been from time to time. The claimant when he answered was, on the available material, under the belief that his TB was present in the sense it might recur. He thought (so the Tribunal held) that what he had suffered had been associated with TB. He made this clear by paragraph 7 of his response, which shows he thought and was saying that the symptoms he complained of in the originating application were not "truly" diagnosed until 2005 when the label "TB" was clinically attached to them.
46. Nor did the directions hearing of 11 January 2007 alter this position. The Claimant's assertion was not that he had throughout suffered from that which was clinically to be recognised as TB but (see paragraph 2) that he was diagnosed on 4 October 2005 as suffering from TB (which, it was agreed, he was). If the Respondent was misled by this, as it submits, then prior to the hearing it had the witness statement of the Claimant, in which he ascribed all the symptoms of which he complained in his originating application to his having TB – but it was the full range of those particular symptoms of which he was complaining. That was underlined by the letter to which Ms Newton drew our attention in the evidential bundle.
47. Thus, even if the respondent employer had not been properly aware of the allegation in fact being made against it during the hearing, it would have had no proper cause for complaint that the Tribunal adopted the approach it did. However, the Tribunal's decision shows that the scope of the allegations being made by the Claimant (namely that he had suffered since 2004 with the range of effects he described) was being maintained by him, and entertained by the Tribunal. The Respondent had an opportunity to deal with it there and then or, if it felt unable to do so, to seek an adjournment. It did not seek an adjournment. However, it was offered one (for the associated possibility that it might wish to investigate medical records, relevant to the way in which the claim was being advanced).
48. In the light of these considerations, we conclude:

(a) There was no flaw in the Tribunal's approach;

(b) The Tribunal had jurisdiction to consider the complaint;

(c) There was no unfairness to the Appellant;

(d) If there had been, the Appellant could and should have remedied that by seeking an adjournment, and not by taking a point as to the scope of the claim before the Tribunal, failing to seek an adjournment, and repeating the point before us.

49. We do not think that there is any merit, either, in the submissions based upon the case of McDougall. In the present case, the decision did not turn upon any predictive element to be established on the facts known at the time. The employer was well aware that the Claimant claimed to be off work sick. The issue was whether during that time he was for at least a year (encompassing the relevant act of discrimination) suffering from an impairment or impairments which had a substantial adverse effect upon his normal day to day activities. In answering that question, the Tribunal was entitled to have regard to the evidence of the Claimant and, indeed, to the evidence of Professor Douglas albeit that the employer did not itself seek expert advice at the time. McDougall does not mean that it had to.
50. A third point taken in the Notice of Appeal – that the Tribunal had been unfairly critical of the expert evidence of Professor Douglas – did not feature prominently, if at all, in the oral argument before us. We do not read the Tribunal as being critical of Professor Douglas in indicating that his focus was exclusively upon clinical TB – that is, after all, what he said it was. Once it is accepted (as it was accepted before us) that a tribunal was entitled to regard as disabled someone who suffered from a combination of impairments with different effects, to different extents, over periods of time which overlapped, the Tribunal was plainly entitled to rely upon the Claimant's evidence. It is trite that although a tribunal must pay proper respect to expert evidence it is not bound by it. The decision is that of the tribunal, not of the medical expert.
51. In the event, we dismiss the appeal, with gratitude to counsel for the clarity of their presentations.