England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2
		Friday, 9th June 2000

Friday, 9th June 2000

1. LORD JUSTICE PILL: Schiemann LJ will give the first judgment.
2. LORD JUSTICE SCHIEMANN: Before the Court is an issue as to whether the Employment Appeal Tribunal, after allowing an appeal from an Employment Tribunal, erred in not remitting the case to an Employment Tribunal. The Employment Appeal Tribunal had heard the appeal. It had held that the Employment Tribunal had fallen into error. Both sides agree that the Employment Appeal Tribunal was right so to hold. The powers of the EAT in those circumstances are set out in section 35(1) of the Employment Tribunal Act 1996, which reads as follows:

"For the purposes of disposing of an appeal, the Appeal Tribunal may -

(a) exercise any of the powers of the body... from whom the appeal was brought, or

(b) remit the case to that body..."

3. - so it is clear that the Employment Appeal Tribunal might have remitted the case to an Employment Tribunal. Instead it decided the case itself. The appellant/employer submits that the EAT erred in law in not remitting the case. The employer appeals by leave of this court.
4. The issue before the Employment Tribunal had been a preliminary issue as to whether in July 1997 the employee was disabled within the meaning of the Disability Discrimination Act 1995. The Employment Tribunal held by a majority that he was not. The EAT held that he was. Section 1 of the Act provides:

"1(1)... a person has a disability... 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."

5. 2(1) The effect of an impairment is a long-term effect if -

(a) it has lasted at least 12 months; or (b) the period for which it lasts is likely to be at least 12 months. (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."

6. Paragraph 4(1) reads so far as presently relevant:

"An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects...

(g) memory or ability to concentrate learn or understand."

7. Paragraph 6(1) is titled Effect of medical treatment. It reads:

"An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it is to be treated as having that effect.

(2) in sub-paragraph (1) "measures" includes, in particular, medical treatment and the use of a prosthesis or other aid."

8. Before the Employment Tribunal the employee gave evidence on his own behalf and called two expert witnesses - one was his general practitioner, and the other was a consultant psychologist from the Maudsley Hospital. They both stated that in their opinion the employee's problems were almost entirely due to his work, and both recommended that he be retired on medical grounds.
9. The evidence of both the experts was that but for the treatment that the employee was at all material times receiving there was a very strong likelihood of total mental breakdown requiring psychiatric in-patient care - the treatment in this case being a series of consultations with the psychologist. It was common ground that this state of affairs would constitute a mental impairment with a substantial adverse effect on day-to-day activities.
10. It was not submitted on behalf of the employer that the experts were wrong on this point or that their evidence should be rejected. The employers themselves, through no fault of their own, were in a position where they could not call a doctor. That being the case it was not and could not be properly put to the two experts in cross-examination that their conclusions, which I have set out, were in any way incorrect. The majority of the Employment Tribunal were impressed by the way in which the employee gave evidence before them. I ought at this point to make it clear that the hearing before the Employment Tribunal was on the 8th to 10th June 1998, whereas the crucial date in relation to which the condition of the employee had to be assessed was in any event not later than July 1997.
11. The crux of the Employment Tribunal's decision is to be found at page 102 of the core bundle in paragraph 19 which sets out the majority decision. It reads as follows:

"The majority decision was that whilst we accepted the diagnosis of reactive depression we could not on all the evidence be satisfied that this had more than a trivial effect upon the Applicant's ability to carry out normal day to day activities. ... We therefore concluded the Applicant had not satisfied the onus which is upon him to show us that he was disabled within the meaning of the Act and we therefore dismissed this application."

12. It is noticeable that neither the majority nor the chairman (who was in a minority) expressly refer to paragraph 6 of schedule 1 of the Disability Discrimination Act which I have read. We are told that it had been argued by both sides in front of them.
13. When the matter was appealed by the employee to the Employment Appeal Tribunal that Tribunal accepted the following submissions which were made on behalf of the employee in relation to errors made by the Employment Tribunal. They said at page 16 D:

"In support of the appeal Mr Neaman"

14. - I interpose to say he was counsel who then and now appeared for the employee -

"takes essentially two points. First he submits that the majority were simply wrong to say that there was no evidence that the mental impairment had any adverse effect on his day-to-day activities.

In support of that submission he relies on the following evidence which was before the tribunal and not contradicted by evidence called by the respondent;

(1) Mr Revell, in his written report dated 31st December 1997, stated:

'I can say that in my opinion there is no doubt that Mr Kapadia's symptoms of anxiety and depressionconstituted a mental impairment ofsufficient duration and severity to have had a substantial and long-term effect of his ability tocarry out normal day-to-day activities...'

(2) Dr Namasivayam, in a report dated 13th January 1998, stated:

'During the time of his treatment and absence he had considerabledifficulty concentrating. It effected his sleeping pattern and he experienced degrees ofagoraphobia.'

(3)In his witness statement, which he read out to the tribunal as part of his evidence-in-chief, the appellant said:

'I was unable to sleep, lost my appetite, suffered from depression, irritability and mood swings, and began to suffer from a lack of motivation progressively.

Over this long period of time from around March 1995, my memory and my ability to concentrate alsobecame worse. I had difficulty with absorbing and organising information and I took longer to complete worktasks. I became progressively more tense. My ability to communicate with my colleagues other peopleadversely affected.'

In these circumstances, submits Mr Neaman, it cannot be said that there was no evidence that the appellant's mental impairment had a substantial effect upon his ability to carry out normal day-to-day activities.

However, if he failed in his primary submission Mr Neaman took a second point. The majority does not appear to have considered the 'deduced effects' on the appellant's day-to-day activities absent medical treatment. (Schedule 1, paragraph 6).

It is common ground that in evidence the medical men called on behalf of the appellant were of the opinion that without the counselling sessions with Mr Revell there would have been a very strong likelihood of total mental breakdown and the need for psychiatric treatment including in-patient treatment. Mr Basu"

15. - and I interpose to say that was counsel for the employee who appeared then and appears now -

"does not seriously argue that if that state of affairs existed then the appellant's impairment would not have had a substantial effect on his day-to-day activities. We repeat, no medical evidence was called by the respondent to contest those expressions of opinion."

16. They say a little later on at the bottom of page 18G:

"We do not preclude the possibility that a tribunal may, for good reason, reject uncontradicted medical evidence. However that is not what happened here. The majority simply disregarded the medical evidence. That, in our view, is wholly impermissible."

17. I close with one more quotation from the Appeal Tribunal's decision which appears at page 20:

"Finally, Mr Basu submits that the majority's conclusion is a triumph for the system of lay members, exercising common sense and not being overawed by the views of expert witnesses. Whilst we recognise the strength of having lay members with industrial experience on Employment Tribunals, we cannot accept that that common sense approach extends to disregarding completely the medical evidence before the tribunal, in favour of a judgment apparently made solely on the basis of how the appellant appeared to the lay members when giving his evidence."

18. Before us Mr Basu conceded that the Employment Appeal Tribunal were right to set aside the decision of the Employment Tribunal. He accepted that if on the facts as found by the Employment Tribunal there could only be one answer to the question whether the employee was disabled at the relevant time, then the EAT was entitled to give that answer and was not bound to remit the case to the Tribunal. That is in accord with a long line of authority of which I think the most recent reported case that was put before us is Martins v Marks & Spencer plc [1998] IRLR at 326. The facts of that case do not matter for present purposes. The relevant quotation is it contained in paragraph 55 in the judgment of Mummery LJ who was delivering the judgment of the Court. He said this:

"It is not usually open to an appellate tribunal to substitute a different decision for the decision of the industrial tribunal which contains the errors of law:

'If the conclusion was wrong or might have been wrong, then it is for anappellate tribunal to remit the case to the only tribunal which is charged with making findings of fact.'

See Dobie v Burns International Security Services (UK) Ltd [1984] IRLR 329 at 332, 18, per Sir John Donaldson MR. In this case, however, we are satisfied that the conclusion reached by the tribunal, as a result of a self-misdirection... is 'plainly and unarguably wrong upon the facts found by the industrial tribunal and those facts do not require any further amplification or re-investigation.' See McLeod v Hellyer Brothers Ltd [1986] ICR 122 at 130 and [1987] IRLR 232 at 241, 52.

In those circumstances this court is entitled to substitute its own conclusion as to what those factual findings require in law."

19. Although the reference in that quotation and in other quotations is to the facts found before the Tribunal, it is, and in my judgment quite rightly accepted on behalf of the appellant, that one must look to the real question of whether there could only be one answer to the relevant question at the relevant time.
20. But the essential submission is that the present was a case where, on the facts as found by the Employment Tribunal, there was room for either the conclusion that the employee had proved his case or for the conclusion that he had not. If that submission be right then it is common ground that the case should have been remitted.
21. In the elegant skeleton argument which was placed before us by Mr Basu (for which I express my gratitude) he says that it was for the employee to prove either (1) that his anxiety, neuroses and depression had such an effect on his memory, or ability to concentrate, as to have a substantial adverse effect on his ability to carry out normal day-to-day activities, or (2) that his anxiety, neuroses and depression would have had such an effect but for the fact that measures were being taken to treat or correct this condition. That, in my judgment, is correct. One must note that it suffices if the employee proves either of these things.
22. In the present case the employee concentrated on the second limb and relied on the undisputed medical evidence to show that the effect in June 1998 of the earlier medical treatment was to conceal the evidence of underlying disability. He accepts that the Employment Tribunal was entitled to conclude in June 1998 that he appeared fit but submits that if it had considered the question "Was there an underlying disability in July 1997 which was concealed by the medical treatment?" it could, in the light of the medical evidence, only have come to an affirmative answer.
23. The employer points to the accepted fact that during nearly all of 1998 there has been no medical treatment. He submits that from this fact it would be open to the Employment Tribunal, notwithstanding the medical evidence, to conclude on any remission that the employee could not show that the medical treatment which the employee had been receiving in 1997 had made any difference to his fitness. If this be right then the fact that the employee was fit in June 1998 and that he claimed that he was worse then than in July 1997 led to the possible conclusion that he had not shown that he was disabled in July 1997.
24. In my judgment the employee's contentions are correct. The relevant date is July 1997. The direct evidence as to that date came from two medical experts who were qualified in that field. There was no contrary expert medical evidence. There was no challenge to the factual bases of those opinions. Nor were there any peculiar circumstances which would enable those opinions to be challenged. In those circumstances I consider that the Employment Tribunal was obliged to come to the conclusion that the employee had proved his case and erred in not so doing.
25. That being so the Employment Appeal Tribunal was entitled to do that which the Employment Tribunal ought to have done. In those circumstances to have remitted the case to the Employment Tribunal could only have been done in order to enable new evidence to be called by the Employer which they did not call in July 1998. That would not have been proper.
26. I would dismiss this appeal.
27. LORD JUSTICE ROBERT WALKER: I agree.
28. LORD JUSTICE PILL: I also agree that the appeal should be dismissed. It is common ground that there was an error by the Employment Tribunal in failing to make a finding of fact upon the expert evidence, which included medical evidence. It is, however, submitted on behalf of the borough that the case should be remitted to the Employment Tribunal for reconsideration on the ground that more than one answer to the claim is possible.
29. As my Lord has pointed out, two expert witnesses were called on behalf of the claimant as to his state of health and as to the matters which are set out in the Disability Discrimination Act 1995 section 1 and the first schedule. Mr Revell, who is a consultant clinical psychologist and Dr Namasivayam, who is a registered medical practitioner were called. They each gave detailed evidence both in writing and orally to the effect that the claimant did come within the appropriate definition in the Act and schedule and had a disability. No evidence to the contrary was called in circumstances to which I will refer. There was no direct challenge to the firm opinions which the expert witnesses expressed. The factual basis of their opinions was not challenged. It seems to me that there was no material on the basis of which the opinions of the experts could be challenged.
30. There will be cases in which a fact-finding tribunal is not obliged to accept uncontested medical evidence given to it. For example, the evidence on the basis of which a doctor has formed an opinion may be rejected by the fact-finding tribunal. There may be cases where it is clear that the medical witness has misunderstood the evidence which he was invited to consider in expressing his opinion. No such considerations apply, however, in this case. The majority of the tribunal sought to substitute, for the medical opinions, their own impression of the claimant formed in the course of the hearing which took place a year at least after the relevant date at which the claimant's medical state had to be considered.
31. In my judgment, in agreement with Schiemann LJ, in the circumstances of this case, the Employment Tribunal could not reasonably reject the expert opinions from the medical doctor and the consultant clinical psychologist, which were before them. It was a perverse finding of the majority of the tribunal to reject that evidence.
32. The circumstances in which no evidence was called on behalf of the borough have been described to us in the course of argument. The borough sought to obtain an independent medical opinion. They did so by instructing a doctor employed by the Kings Health Care NHS Trust. They did so quite properly through the claimant's solicitor. The claimant was examined with his consent, which was expressed in writing, and with the consent of his solicitor. The doctor duly examined the claimant and prepared a report. However, the doctor told the employers that he would not supply the report to them without first showing it to the claimant. He did so in advance of the hearing. When required to attend the hearing, he again took that stance on the first morning of the hearing saying that he had sought advice within the medical profession as to what was the proper course to adopt in the circumstances. The Tribunal was aware of this difficulty. The chairman of the Tribunal stated at paragraph 22:

"It was unfortunate for the Respondents that Dr Grimes had refused to hand over his report to them on the first morning of the hearing, but counsel had taken the decision to go on in the absence of that report and that was a matter to him."

33. It is not suggested that the legal advisors of the claimant were in any way obstructive in the view which they took. But the claimant himself said that without seeing the report for himself he was not prepared to consent to its being disclosed, and the doctor said that in the absence of such informed consent (as we are told he put it) he was not prepared to disclose the report to the employers.
34. We have not heard the doctor as to why he took the stance he did. There may possibly have been considerations of which this Court is unaware, though counsel are agreed upon the summary of events which I have just expressed. On the facts the Court knows, the report should, in my judgment, have been disclosed by the doctor to the employers. No further consent was required from the claimant. By consenting to being examined on behalf of the employers the claimant was consenting to the disclosure to the employers of a report resulting from that examination. A practice under which a person who has agreed to be examined in circumstances such as these, but then claims a veto upon disclosure of the report to those who obtained it is not, in my view, a good practice. Indeed it is an impediment to the fair and expeditious conduct of litigation.
35. In my judgment, on the information I have, good practice in this case required the disclosure of the report to the party which, with the written consent of the plaintiff and the consent of those advising him, had obtained the report.
36. I should add that my comments upon that practice in no way affect my view as to the appropriate outcome of this appeal. For the reasons I have expressed along with those expressed by Schiemann LJ, I too would dismiss the appeal.
(Appeal allowed with costs; costs summarily assessed at £3,300 plus VAT at 17.5 per cent)