England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2
		13 November 2002

1. LORD JUSTICE SIMON BROWN: Miss Woodrup appeals by permission of Potter LJ against the order of the Employment Appeal Tribunal ("the EAT"), presided over by Burton J, on 4 February 2002, dismissing her appeal against the decision of a south London Employment Tribunal on 27 March 2000, dismissing her claim against the respondent London Borough of Southwark under the Disability Discrimination Act 1995 ("the Act").
2. Three days had been set aside for the hearing before the Employment Tribunal. In the event, however, instead of embarking upon the full hearing of all issues the tribunal agreed to hear a preliminary point as to whether the appellant's condition fell within the Act; and, holding that it did not, dismissed her application. It was, of course, unnecessary, on the basis of that holding, to proceed to the consideration of other issues, notably the question whether, assuming the appellant had been suffering a disabling condition within the Act, she was disadvantaged or prejudiced as a result. The Employment Tribunal at the same time dismissed the appellant's claim for breach of contract, a matter that is not before us and need not therefore be referred to further.
3. The most directly relevant provisions of the Act are for present purposes these. Section 1(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."

Guidance issued by the Secretary of State under section 3(1) of the Act provides that "substantial" means more than "minimal or trivial". Paragraph 4 of schedule 1 to the Act provides:

"(1) 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 one of the following ....

(g)  .... ability to concentrate .... "

Paragraph 6 provides:

"(1) 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."

4. Paragraph 6 is central to this appeal. As will readily be seen, it provides (perhaps rather surprisingly) that someone is to be treated as disabled even though they are not in fact disabled (even, that is, where they suffer no substantial adverse effect on their ability to carry out normal day-to-day activities) if, without the medical treatment they are in fact receiving, they would suffer that disability. One asks the question whether, if treatment were stopped at the relevant date, would the person then, notwithstanding such benefit as had been obtained from prior treatment, have an impairment which would have the relevant adverse effect?
5. The appellant appeared before the Employment Tribunal unrepresented and with no medical evidence save for the following four documents: (1) a letter dated 30 November 1992 from a locum consultant psychiatrist at the Maudsley Hospital indicating that the appellant had been a patient of the psychiatric clinic there since September 1991, under treatment for a generalised anxiety disorder, giving a history dating back to February 1991; (2) a sick note dated 22 November 1993, indicating that the appellant should refrain from work for three months by virtue of nervous disorder; (3) a medical certificate dated 22 November 1999 from a GP, indicating that in the GP's opinion the appellant was suffering from anxiety neurosis and was receiving psychotherapy, and had had anxiety neurosis for five years; (4) a letter dated 2 December 1999 from the South London and Maudsley NHS Trust, signed by a consultant psychotherapist, Dr Davison, which reads:

"This is to confirm that [the appellant] has been under the care of the Psychotherapy Unit at this hospital since the beginning of 1992. I first saw her on 25.02.92 and have reviewed her progress on a number of occasions since. In that time she has received both individual and group psychotherapy. She has been attending a twice weekly psychotherapy group which meets on Mondays 9.45-11.15 am and Wednesdays 8.30-10.00 am since 17 November 1997. This has provided her with a rare opportunity for long-term, intensive psychotherapy in the NHS.

She has made good progress in psychotherapy and it is very gratifying that she now feels well enough to move on into employment. However she is not yet recovered enough to leave the psychotherapy group and indeed were she to leave prematurely it could jeopardise the recovery she has so far achieved."

6. Let me at this stage read just the final two paragraphs of the Employment Tribunal's decision on the appellant's disability claim:

"11. The Tribunal considered whether the hearing should be adjourned to permit the Applicant a further opportunity to obtain medical evidence, but concluded that this would serve no purpose as the Applicant had been repeatedly requested by the Respondent, and later, ordered by the Tribunal, to produce such evidence and had not done so.

12. The Tribunal concludes that in the absence of medical evidence the Applicant was unable to substantiate her claim for disability discrimination which therefore fails and is dismissed."

With regard to paragraph 11, I would just note that in response to a very full request for particulars, which had been the subject of an interlocutory order on 1 February 2000, the appellant had stated no more than that she had been suffering from anxiety neurosis since February 1991 and that she was "Receiving psychotherapy treatment which alleviates the effects. If medical treatment were to be stopped, then I would deteriorate and full symptoms would return." She said she had obtained medical evidence to substantiate her "illness and/or condition".

7. Strongly in issue on the appeal before the EAT was the question whether, in reaching its conclusion, the Employment Tribunal had in fact had regard to paragraph 6 of the schedule: had they or had they not considered what has been called the "deduced" effects of the impairment suffered by the complainant; that is, had they asked the question what would happen if the treatment stopped? In his very careful and thorough judgment, which extends to 15 pages of transcript, Burton J in the EAT analysed the course of proceedings before the Employment Tribunal, in particular by reference not only to the chairman's note but also to the respondent's solicitor's rather fuller notes of that hearing, and concluded that the Employment Tribunal had indeed had regard to paragraph 6 and had accordingly asked itself the correct question. The EAT nevertheless agreed with Mr Kibling (who represented the appellant then as now) that the Employment Tribunal's "decision is far from clear or satisfactory in its terms".
8. The EAT, therefore, proceeded to consider the alternative basis upon which the respondent borough sought to uphold the Employment Tribunal's decision, namely upon the basis that the appellant's claim before the tribunal had in any event been bound to fail, so that it would be wrong to remit it for further consideration. As Burton J said in paragraph 27 of his judgment:

"On this alternative basis, it is always important for an Appeal Tribunal to give every possible doubt to an Appellant, when considering the question as to whether there would be any benefit in remitting the hearing. Alternatively, put another way, the issue is whether the Employment Appeal Tribunal itself can be satisfied that, on asking the correct question, if indeed the Tribunal below did not ask itself the correct question which for this purpose I assume but do not find, the same result would have ensued."

The correct question, I repeat, was whether, but for her treatment, the appellant would have been suffering the relevant effects on and after the relevant date.

9. Having considered the evidence before the Employment Tribunal, the EAT then reached the clear conclusion that there was indeed only one view open to them, namely that the appellant had failed to establish that if her treatment had been discontinued, her impairment would then have had a substantial adverse effect on her ability to carry out her normal day-to-day activities. Let me quote what seems to me the determinative paragraph of the EAT's judgment, paragraph 28:

"The only matter that has caused us pause for thought is the last minute point made by Mr Kibling, by reference to the nervous breakdown prior to 1991. [That is a reference to evidence given by the appellant to the Employment Tribunal at the hearing that she had indeed had such a breakdown.] In this context it is, perhaps, necessary to remind ourselves as to what the treatment is that has been going on since 1991. It is not suggested that the treatment was at all continuous until 1997. There was only sporadic treatment from the period from 1993, if not earlier, onwards, and the regular twice weekly treatment only began in November 1997. It seems to us that the fact that the appellant had an unfortunate nervous breakdown in 1991, but has had no further serious problem or problem materially sufficient to mention since then, negatives any inference that might be drawn from the fact that in 1991 there was this problem. Treatment which was only sporadic until 1997 and then more regular is not, it seems to us, likely to have been responsible for preventing the recurrence of a nervous breakdown which was suffered in 1991, nor does it seem to us that in the absence of such occasional treatment it would be likely to have recurred. Of course, medical evidence to the contrary might have assisted the Appellant, but there was none such, and we ask ourselves whether it is to be inferred from the existence of a nervous breakdown in 1991, without the support of medical evidence, even arguably that if the psychotherapy sessions were discontinued a substantial condition would now recur. Such conclusion is, in our view, not available on the evidence, and it does not fall to be inferred, particularly unsupported by medical evidence, from what was put before the Tribunal."

I might perhaps add that in the medical letter which most directly bears upon the critical question, namely Dr Davison's letter of 2 December 1999, the position was put no higher than this:

" .... were [the appellant] to leave [the psychotherapy group] prematurely it could jeopardise the recovery she has to far achieved."

10. Before turning to the appellant's arguments, it is convenient at this stage to look at one particular decision on deduced effects to which we have been referred, Kapadia v London Borough of Lambeth [2000] IRLR 14, another case where the appellant's condition was one of reactive depression and anxiety. There, however, unlike here, two doctors were called to support the appellant's case and to give evidence as to what would have occurred had his treatment stopped. Paragraph 20 of Judge Peter Clark's judgment in the EAT reads:

"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 .... there would have been a very strong likelihood of total mental breakdown and the need for psychiatric treatment including in-patient treatment ....  [Counsel for the respondent] 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. No medical evidence was called by the respondent to contest those expressions of opinion."

It is hardly surprising that in those circumstances the EAT in that case held that the majority decision of the Employment Tribunal had been perverse in rejecting the medical evidence.

11. Here, of course, by contrast, no medical evidence whatever was called to support the appellant's case under paragraph 6. Rather, the evidence was confined to what the appellant herself surmised would have happened. Take the following passage in the evidence before the tribunal (conveniently set out in the EAT's judgment):

"Tribunal: .... if didn't take your medicine.

Appellant: Has given me a reality path. Focus if not then I would slip out of reality. Puts me in a position where I can manage things.

Tribunal: Are we talking about concentration.

Appellant: Yes, focus. I would drop.

Tribunal: What would happen if you dropped.

Appellant: Would lose focus and reality.

Tribunal: If did not have treatment then what would happen when got out of bed.

Appellant: Couldn't get out of bed."

As already mentioned, she also referred to a breakdown suffered in or before 1991. That struck the Employment Tribunal and the EAT and, I have to say, strikes me as evidence simply of the appellant's own opinion on the matter, unsupported by any medical opinion to the same effect.

12. Although the notice of appeal articulates five grounds of appeal (essentially the self-same grounds as were advanced before the EAT itself) in reality there is but one main ground and one subsidiary ground. As indeed Burton J noted in paragraph 23 of the judgment below:

"By the end of his oral submissions, [Mr Kibling's] case had really come down to a very short point centred around paragraph 6 of Schedule 1."

Mr Kibling effectively recognises that again on this further appeal. The main ground is simply that the EAT was wrong to conclude that the four medical documents which the appellant produced in evidence, coupled with her own evidence, were bound to have been regarded by the Employment Tribunal as insufficient to establish that she was suffering from the deduced effects of her condition. This is, of course, ultimately a pure question of fact and for my part I share the EAT's view expressed in paragraph 28 of Burton J's judgment, already quoted.

13. I would just add this. In any deduced effects case of this sort the claimant should be required to prove his or her alleged disability with some particularity. Those seeking to invoke this peculiarly benign doctrine under paragraph 6 of the schedule should not readily expect to be indulged by the tribunal of fact. Ordinarily, at least in the present class of case, one would expect clear medical evidence to be necessary.
14. Given that view of the matter, the EAT was clearly right to take the course it did and not to remit the matter to the Employment Tribunal. As to that course, it seems to me that the Court of Appeal's judgment in Kapadia, unreported transcript 9 June 2000, is helpful. Let me read just paragraphs 24 and 25 of Schiemann LJ's leading judgment in this court:

"24. 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."

15. I turn briefly to the appellant's subsidiary ground of appeal, the contention that, this being a disability claim, the Employment Tribunal was obliged to adopt, on the unrepresented claimant's behalf, a more interventionist and/or inquisitorial approach than in fact it did. Mr Kibling's argument points to the requirements in the Act for all providers of services to the public to make "reasonable adjustments" in dealing with disabled people.
16. Ingenious though it is, to my mind the argument is unsustainable on the facts of this case. Even assuming (as Mr Kibling submits, although I for my part regard as somewhat far-fetched) that the Employment Tribunal was indeed providing a service to the public under Part III of the Act, two important considerations arise here. First, the Employment Tribunal seems to me to have gone a considerable distance towards assisting this appellant, not least given her notably unhelpful responses to earlier requests and the interlocutory order to particularise her case before the hearing. The course taken by the tribunal was described in paragraph 5 of Burton J's judgment as follows:

"The course the hearing took on the informal basis, rightly encouraged at the Employment Tribunals, was that the Applicant being unrepresented was permitted, indeed, encouraged effectively to supplement the pleadings and particulars previously given, by explaining what the nature of her case was going to be, effectively thus constituting a proof or witness statement of evidence that she would give, which would thus be put before the Tribunal, and the Tribunal would thus decide, on the basis of the pleadings and the explanation of the case so given by the Applicant, whether there was an arguable case to go forward for full consideration put forward by the Applicant."

That seems to me to have been both a fair and appropriate course to follow.

17. As to Mr Kibling's contention that the tribunal of its own initiative should have adjourned this hearing in order to allow the appellant the opportunity to seek to obtain some or better medical evidence, it should be remembered that the parties were in attendance for a three-day fixture. One cannot but note in this connection that by his interlocutory order of 1 February 2000 the chairman had already refused the respondent's application to postpone the fixture, ordering that "The hearing will proceed as listed for three days commencing 27 March 2000".
18. The second point to make is that this was, as stated, a deduced effects case, rather than a case in which the claimant was in fact suffering material disability. It seems to me to be carrying the paragraph 6 concept to absurd lengths to say that an Employment Tribunal dealing with such a claim must, in deciding its own procedures, pretend that the claimant is in fact disabled when it knows that he or she is not.
19. In my judgment, there is nothing in either of the appellant's grounds. I would dismiss this appeal.
20. LORD JUSTICE CLARKE: I agree that this appeal should be dismissed for the reasons given by Lord Justice Simon Brown. I add a few words of my own because of what appears, to me at least, to be the peculiar nature of the question posed by paragraph 6(1) of schedule 1 to the Disability Discrimination Act 1995.
21. As I see it, the question posed by paragraph 6(1), as applied to the facts of this case, is whether, if the treatment were stopped at the relevant date, the appellant's anxiety neurosis would have been such as to have a substantial adverse effect on her ability to carry out normal day-to-day activities. I do not understand it to be in dispute that that is the relevant question. Equally, I do not understand it to be in dispute that in answering that question, the tribunal had to assume that the appellant in fact received treatment until the treatment is assumed to be stopped for the purposes of paragraph 6.
22. Once it is appreciated that that is the correct approach, it can be seen that the evidence of the appellant as to what would have happened if the treatment were stopped is of no real value. That is because she could not possibly know what the answer to the question was. She could have no relevant experience upon which to base her answer. The position might have been different if the treatment had in fact stopped in the period since it began on 17 November 1997, because she would then have had experience upon which to base an answer. Absent such experience, her statement in her particulars, repeated in substance in her statement to the tribunal, that if medical treatment were to be stopped she "would deteriorate and full symptoms would return" was little more than speculation.
23. In these circumstances I agree that the conclusions reached by the EAT and set out in paragraph 28 of the judgment which was delivered by Burton J, and which has been quoted by Lord Justice Simon Brown, cannot be faulted.
24. As to the submission that the tribunal should have adjourned the hearing in order to give the appellant an opportunity to adduce further evidence, I would only add these short points. I am not at present persuaded that an Employment Tribunal is a provider of services within section 21(1) of the Disability Discrimination Act 1995. I have nevertheless considered the wider question whether, quite apart from section 21 of the Act, the Employment Tribunal in fairness to the appellant should have adjourned the hearing. The appellant had had every opportunity to put medical evidence before the tribunal. Moreover, the appellant did not put any material before the EAT to the effect that such an adjournment would or might have been of benefit to her. The opinion of Dr S Davison, the consultant psychotherapist at the psychotherapy unit of the Maudsley Hospital, dated 2 December 1999, concluded as follows:

"She has made good progress in psychotherapy and it is very gratifying that she now feels well enough to move on into employment. However she is not yet recovered enough to leave the psychotherapy group and indeed were she to leave prematurely it could jeopardise the recovery she has so far achieved."

That opinion shows that the psychotherapy treatment had been effective and, as I see it, the caveat in the second sentence does not support the conclusion that if treatment were stopped, the appellant's anxiety neurosis would be such as to have a substantial adverse effect on her ability to carry out normal day-to-day activities. It goes no further than to say that if it were stopped, it could jeopardise her recovery (my emphasis). It is pure speculation whether Dr Davison would have been willing to go further if she had been asked.

25. In all these circumstances, it appears to me that there is no basis upon which the EAT could have set aside the Employment Tribunal decision not to afford the appellant an adjournment.
26. For all these reasons, in addition to those given by my Lord, I would dismiss this appeal.
ORDER: Appeal dismissed with costs under section 11 of the Access to Justice 1999. (Order does not form part of the approved judgment)