Veitch Penny LLP - Exeter | Crediton, Devon

Case

Kirton v Tetrosyl Ltd
Court of Appeal (10 April 2003)

Issues

(1) Disability discrimination
(2) Meaning of disability
(3) Progressive conditions

Facts

In October 1999, Mr Kirton, the Appellant, was diagnosed has having cancer of the prostate. He underwent surgery which resulted in Mr Kirton suffering from urinary incontinence.

Mr Kirton made a number of claims against his employer, which included a complaint of disability discrimination. The Tribunal concluded that Mr Kirton did not fall within the definition of a “disabled person” because his condition did not have “a substantial and long-term adverse effect upon his ability to carry out normal day-to-day activities”. In reaching this decision, the Tribunal considered the guidance prepared by the Secretary of State on the definition of disability, which suggested that it would be reasonable to regard a frequent minor leakage as a substantial adverse effect, but not an infrequent minor leakage.

The Tribunal also rejected Mr Kirton’s submission that, in any event, he was to be taken to be a disabled person under the “progressive condition” provisions of the Disability Discrimination Act 1995 (namely paragraph 8(1) of Schedule 1) which states that where:

“(a) A person has a progressive condition (such as cancer….)
(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 substantial adverse effect if the condition is likely to result in his having such an impairment.” The Act contains a non-exhaustive list of potential examples of progressive conditions. One of the listed activities is continence.

The Appeal Tribunal rejected Mr Kirton’s appeal and found that the Tribunal had been correct to find that Mr Kirton did not fall within the definition of disability relating to a “progressive” condition. The words “as a result of that condition” required the impairment to be a direct result of the progressive condition and not as a result of the surgery by which the cancer was treated. In this case, Mr Kirton’s impairment was as a result of the surgery not the condition.

Decision

The Court of Appeal allowed the appeal, overturning the Appeal Tribunal’s decision. The matter was remitted to back to the Employment Tribunal to proceed on the basis that Mr Kirton was disabled within the meaning of the Act.

It was held that the Appeal Tribunal had been incorrect to find that Mr Kirton did not fall within the definition of disability relating to “progressive conditions”. The impairment of urinary incontinence was a result of the condition within the meaning of the statutory definition, notwithstanding that it was a result of the surgery he had undergone.

Comments

Clearly, the original decision was controversial and restrictive. The Court of Appeal stated that the phrase “as a result of that condition” should not have been so narrowly construed to exclude an impairment which had been the result of a standard and common form of operative procedure for such a cancer. Impairment in this context also includes the consequences of an operation to relieve the disease.