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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Latchman v Reed Business Information Ltd [2002] EWCA Civ 729 (7 May 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/729.html
Cite as: [2002] EWCA Civ 729
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Lindsay)
Strand London WC2 Tuesday, 7th May 2002 |
||
B e f o r e :
LORD JUSTICE JONATHAN PARKER
____________________
| MEENA LATCHMAN | ||
| Applicant | ||
| - v - | ||
| REED BUSINESS INFORMATION LTD | ||
| Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
Arndale Centre, Manchester, M4 3AQ) appeared on behalf of the Applicant.
The Respondent did not appear and was unrepresented.
____________________
Crown Copyright ©
- LORD JUSTICE PETER GIBSON: Meena Latchman applies for permission to appeal from the dismissal by the EAT on 20th February 2002 of her appeal from the decision of an Employment Tribunal sitting at London South. The Employment Tribunal by that decision, sent out on 15th September 2000, held by a majority that Mrs Latchman was not a disabled person for the purposes of the Disability Discrimination Act 1995 and that her originating application by which she had complained against her employer, Reed Business Information Ltd, of unlawful disability discrimination should be dismissed. Mrs Latchman's application for permission to appeal was dismissed by Sedley LJ on paper. Mr Kurrein renews the application today on her behalf.
- Mrs Latchman was employed by the employer from 14th December 1998 to 30th June 1999 as an assistant management accountant. When she joined her employer she mentioned that she suffered from bulimia but indicated that she required no adjustment to be made or support to be given in her working arrangements with regard to her medical condition. She started as a probationer for six months but found it increasingly difficult to cope with work, feeling anxious and stressed. By the end of April 1999 she considered that she could not cope with going to work and she took leave. She developed a form of agoraphobia and for six weeks could not leave her home. She was told on 22nd June 1999 by the employer that her probationary period was unsuccessful partly due to her illness and partly because her work was unsatisfactory. On 30th June 1999 she was dismissed. In her originating application she claimed that she had been discriminated against for a reason relating to her disability. She referred in her IT1 to bulimia and stress-related illness. She also claimed that the employer had breached her contract in failing to comply with its grievance and disciplinary procedures. The employer denied that she was disabled and denied breach of contract, the grievance and disciplinary procedures not applying during probation.
- Pursuant to an order made by the Employment Tribunal on 9th November 1999 requiring medical evidence to be given in relation to a number of specified questions, medical evidence was filed by both sides. Dr Natasha Bijlani, a specialist eating disorder registrar, saw Mrs Latchman on 8th November 1999 and provided a fairly short two-page medical report on Mrs Latchman's instructions. Dr Bijlani did not give oral evidence. Dr Peter Rowan, a consultant psychiatrist, interviewed Mrs Latchman on 12th January 2000 and provided a more detailed six-page report. He did give oral evidence. Each of the two doctors answered the questions which had been raised in the Employment Tribunal's order. They included such matters as whether at 30th June 1999 - the date of dismissal - Mrs Latchman had a physical or mental impairment and, if a mental impairment, was it a clinically well recognised illness affecting her ability to carry out normal day-to-day activities. The two doctors expressed differing views. Another doctor, Dr Sennik, interviewed Mrs Latchman on 10th March 2000 for 24 minutes as part of an incapacity for work benefit assessment. The medical report form which he completed was made available to the Tribunal, but he too did not give evidence before the Tribunal.
- The Employment Tribunal in its Extended Reasons identified the question for determination as being whether at 30th June 1999 Mrs Latchman was a disabled person for the purposes of the Act. The employer accepted that at that date she suffered from two impairments, that is to say bulimia nervosa and severe depressive episode without psychotic symptoms, and that those two impairments were mental impairments which were clinically well recognised being listed in ICD10. The disagreement between the parties was whether the impairments, individually or together, had a substantial long-term adverse effect on Mrs Latchman's mobility and/or her memory, her ability to concentrate, learn or understand.
- The Employment Tribunal recorded the substance of the medical evidence. After referring to the rival submissions of those appearing for Mrs Latchman and the employer respectively and to the statutory provisions and to the guidance given in the code, the Tribunal expressed the view that the bulimia nervosa had not had a substantial and long-term adverse effect on Mrs Latchman's abilities to carry out normal day-to-day activities, had little or no effect on her working or social life and no adverse effect on her mobility, her memory or her ability to concentrate, learn or understand. The Tribunal noted a severe depressive episode without psychotic symptoms having a substantial adverse effect upon her ability to carry out normal day-to-day activities from March/April 1999 until at least the end of that year, and that the agoraphobia had a particularly limiting affect on her mobility, and the severe depression affected her ability to carry out normal day-to-day activities whilst that depression lasted. Thus far, as I read the Tribunal's Extended Reasons, the Tribunal were unanimous.
- But the majority of the Tribunal went on to accept the evidence of Dr Rowan to the effect that on 12th January 2000 Mrs Latchman had ceased to have the impairment of severe depressive episode, though she continued to have a milder depressive illness. The agoraphobia had then gone though she still had a fear of going to busy places. Her memory/concentration was then relatively normal. The majority therefore found that, although the severe depressive episode had had a substantial adverse effect upon her ability to carry out normal day-to-day activities, it did not last 12 months. The majority considered whether the severe depressive episode was likely to recur and noted that she was more susceptible to depression due to her bulimia and that the severe depressive episode could be retrogressive. But Dr Rowan's evidence was accepted that the risk of a further depressive episode was possibly about 50%. The majority therefore found that it could not be said that it was more probable than not - the correct test for likelihood - that a recurrence of the severe depressive episode would happen, and so the adverse effects resulting from the severe depressive episode could not be said to have lasted 12 months or more. The Employment Tribunal looked at the combined effect of the bulimia and the severe depressive episode but accepted evidence that this was no greater than the effect on the day-to-day activities of the depression. Accordingly, the majority found that Mrs Latchman was not disabled. The minority member expressed reasons for arriving at a contrary view, though he said that Mrs Latchman was close to the line and only just satisfied the test of being a disabled person.
- On Mrs Latchman's appeal to the Employment Appeal Tribunal, that Appeal Tribunal, Mr Recorder Burke QC presiding, allowed the appeal to go ahead to a full appeal hearing, save for one ground of appeal which he did not allow. At the full hearing before the EAT, the President Mr Justice Lindsay presiding, the decision of the Employment Tribunal was affirmed.
- Mr Kurrein did not appear below, and indeed we are grateful to him for appearing at fairly short notice (as he tells us), other counsel, again not appearing below, having put in an extremely detailed and lengthy skeleton argument in which numerous points of criticism of the Employment Tribunal's decision were taken.
- Mr Kurrein has concentrated on a few specific points. His first point is this. He submits that the Employment Tribunal erred in failing to distinguish between impairment and the effect of impairment. He submits that the two are quite different and that the effect of impairment can outlast the impairment itself. He submits that the Employment Tribunal in failing to distinguish between the two made a basic error of law. I am not able to accept that argument. Impairment is an ordinary English noun which carries in its meaning the effect of impairing. An impairment is something which impairs abilities. In my judgment this point is what might be called a lawyer's point. But in reality the Tribunal made no error in considering the duration of the impairment and how the severe depressive episode and the bulimia affected Mrs Latchman's ability to carry out normal activities. Mr Kurrein was not able to show us any medical report that drew the distinction which he sought to draw. In my judgment it is an artificial distinction. The Tribunal's decision was not erroneous in this regard.
- Second, Mr Kurrein refers to the report of Dr Sennik. He draws our attention to a number of matters noted briefly in that report, for example, that when he saw Mrs Latchman in March she told him that she did not go out on her own at all. He submits that the Employment Tribunal erred in failing to take proper account of that evidence when it pronounced on the question, for example, of mobility. Again, I am not able to accept that ground as having any real prospect of success. The majority of the Tribunal are recorded as having taken note of Dr Sennik's evidence: see paragraph 41 of the Extended Reasons. Further, the Employment Tribunal had referred expressly to the submission made by counsel then appearing for Mrs Latchman and had recorded what had been submitted in relation to that evidence. The Tribunal, as the Tribunal of fact, were entitled to put what weight they thought appropriate to any part of the evidence adduced before them. That evidence of Dr Sennik was, as I have already indicated, the product of a 24-minute interview in March 2002 and for a purpose quite different from the Disability Discrimination Act. But, most crucially, that evidence was never tested in cross-examination. No doubt questions could have been asked of Dr Sennik had he been proffered in evidence, but, for whatever reason, he did not give evidence. As the Tribunal was well aware of that evidence, it is, in my judgment, impossible to say that the Tribunal must have erred in law in accepting what Dr Rowan said rather than what Dr Sennik said.
- Next Mr Kurrein says that the Employment Tribunal, having accepted Dr Rowan's evidence that Mrs Latchman suffered from mild depression, failed to go on to consider that as an impairment, and so did not consider whether or not that had had an adverse effect such as would entitle Mrs Latchman to be held to be a disabled person. The difficulty in Mr Kurrein's way is this. There is no evidence at all that this particular point was advanced by counsel appearing for Mrs Latchman. We know from the questions asked by the Employment Tribunal of the medical experts in advance of the hearing that the experts were required to say what mental impairment Mrs Latchman had and whether any identified mental impairment was a clinically well-recognised illness. Dr Bijlani's answer was to refer only to the two impairments to which I have already drawn attention. She does not say that any other form of mental impairment was suffered by Mrs Latchman at any time.
- In my judgment, in those circumstances it cannot be right for the Tribunal's decision to be impugned on the ground that it had not considered a matter that was not actually put, or cannot be shown to have been put, to the Tribunal to consider. Indeed the Tribunal took some pains, as it seems to me, in three separate paragraphs to set out what were the arguments advanced by counsel for Mrs Latchman. They did not include anything on the new advanced lines.
- Those comments are also applicable to the next point taken by Mr Kurrein. He criticises the Employment Tribunal for not looking at the question whether the period for which the impairment lasted was likely to be at least 12 months: see paragraph 2(1)(b) of Schedule 1 to the 1995 Act. As the EAT pointed out, there is no reference to that particular paragraph being relied on by Mrs Latchman. There was some discussion of the question which is in effect raised by paragraph 2(2) to Schedule 1 - the likelihood of recurrence of a particular impairment - though it is to be noted that Dr Bijlani did not think it necessary to answer the specific question raised by the Employment Tribunal in respect of that matter. She treated that as not applicable. But there is no complaint about the treatment of the likely recurrence.
- Accordingly, I am not able to accept that any of the grounds on which Mr Kurrein submits that permission to appeal should be given have any real prospect of success.
- I would add for the sake of completeness that I have considered all the other points which are taken in the skeleton argument. None of them, as it seems to me, satisfies the test of having a real prospect of success. No other compelling reason being put forward why this appeal should be allowed to go ahead, I for my part would refuse this application.
- LORD JUSTICE JONATHAN PARKER: I agree.
Tuesday, 7th May 2002