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
(MR JUSTICE BURTON)

		Royal Courts of Justice Strand London, WC2
		15th September 2005

Thursday, 15th September 2005

1. LORD JUSTICE MAURICE KAY: This is an application for permission to appeal an order of the Employment Appeal Tribunal made on 9th February 2005 when it dismissed an appeal by the applicant against a decision of an employment tribunal that had been made on 23rd November 2004.
2. The matter arises in this way. The applicant worked from 1998 at the Great Ormond Street Hospital. She is a highly qualified scientist. Initially she worked as a part-time medical laboratory assistant, but she was upgraded to a medical technical officer in May 1998. She continued to be employed until she resigned on 21st February 2002, although she had been absent from work since 27th November 2001. She has made an application to the employment tribunal claiming constructive dismissal and discrimination under the Disability Discrimination Act 1995.
3. What is abundantly clear is that by the date of the applicant's resignation she was suffering from ill-health in at least two respects. One was that she had by then a history of depression, the other was that she was also suffering from a degree of hearing loss. By her application to the employment tribunal she sought to attribute blame to her former employer for at least some of her problems.
4. The applicant's application has not yet reached final determination. What happened was that a point was reached when it was considered that it would assist if there were a preliminary decision on the issue of disability. That was the matter considered by the employment tribunal in November 2004.
5. The decision of the employment tribunal was that the applicant was disabled within the meaning of the Act by reason of hearing loss from 13th February 2002. It will be observed that that was only some eight days before the date of her resignation. Her case before the employment tribunal, in the Employment Appeal Tribunal, and now, is that there was a relevant disability from an earlier date.
6. Although she was represented by counsel in the employment tribunal and the Employment Appeal Tribunal, the applicant has represented herself in this court. She has done so in an intelligent, articulate and helpful way. I proceed to consider the issues raised. They are raised against the background of the statutory provisions, the most important of which is section 1(1) of the 1995 Act which provides:

"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."

7. Schedule 1, paragraph 4(1), provides:

"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:

(a) mobility;

...

(f) speech, hearing or eyesight;

(g) memory or ability to concentrate, learn or understand; or

(h) perception of the risk of physical danger."

8. I ought also to refer to Schedule 1, paragraph 6(1), which deals with what are sometimes called "deduced effects" in this way:

"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."

9. The employment tribunal considered the question of depression. The GP notes refer to a history of depression going back to 1999. The principal witness before the employment tribunal on the issue was Dr Oyewole, a consultant psychiatrist. He stated in a report:

"...there seems to have been a gradual increase in the level of frustration, despondency, poor concentration, lethargy, tearfulness, poor sleep and low self-worth, which occurred during 1999 to 2002."

10. He also stated:

"By 2001 her level of distress about work had became so high, her concentration and self-confidence so low that she found it increasingly difficult to go to work."

11. In his oral evidence he said that the severe level of depression was reached in or about November 2001. The employment tribunal referred to a continuous depressive disorder and added:

"We have the doctor's uncontested evidence that, during the period 1999 to 2002, there was a gradual increase in the level of frustration, despondency, poor concentration, lethargy, tearfulness, poor sleep and low self-worth... Accordingly, we are satisfied that the Claimant had been suffering from a mental impairment within the meaning of the statute from about mid-1999."

12. Of course the establishment of a relevant mental impairment in itself is not sufficient to establish disability for the purpose of the Act. It has further to be established that the mental impairment has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities.
13. It was upon that point that the applicant's case foundered on this issue. The employment tribunal concluded:

"...as a matter of fact, we have not received evidence from the Claimant that this was why she was unable to go to work in November 2001. In our judgment, she has singularly failed to address this aspect of the case in any of her written or oral evidence."

14. It added:

"...the Claimant has failed to provide us with the necessary relevant evidence of the effect of the disability upon her ability to carry out normal day-to-day activities in the period up to the termination of employment on 21 February 2002."

15. And later:

"In our view the medical evidence in this case stops short of describing the ease or otherwise with which the Claimant could carry out day-to-day activities. In short, the Claimant's evidence fails to address the issue."

16. Pausing there, it is apparent that whilst the employment tribunal unhesitatingly accepted a relevant impairment from mid-1999, it did not accept that the consequences of it were those required by section 1.
17. Turning to the question of hearing loss, the employment tribunal referred to the difficulties it faced because there was no medical report dealing with this issue produced by a witness giving evidence before the tribunal. It had to piece together the history and form a conclusion based on records and other documents over a period of time.
18. The applicant's GP had referred her to Whittington Hospital in May 2000 upon her complaint of hearing loss. She had been examined in July 2000 when it was considered that she was suffering from bilateral, mild, high frequency sensorineural hearing loss. She had a second audiology test at Whittington on 30th May 2001. The technician in question considered the tests not to be reliable because it was considered that the applicant could hear at normal conversational levels, although some of the tests did suggest that there was some hearing loss.
19. On 10th August 2001 an ENT specialist registrar reported:

"... she is getting significant disability at home from her hearing impairment and as a result I have arranged for her to have a hearing aid fitted."

20. However, the audiologist who carried out the test expressed some surprise at the results and stated that he thought that the applicant's hearing was better than the tests suggested.
21. As a result of this apparent inconsistency the employment tribunal said:

"We cannot be sure that the audiogram referred to is different from the one set-out in the earlier letter of 10 August. Although the Claimant places some reliance on this letter, we think it is dangerous to read it out of context."

22. In January 2002 a consultant audiological physician at the Royal National Hospital considered the applicant's hearing difficulties. An audiogram showed sloping moderate to severely profound sensorineural hearing loss, but the audiologist again felt that hearing levels may be better than that suggested and further audiological testing was requested. The employment tribunal said:

"We consider that up to this point in the chronology the evidence is ambiguous; frequently qualified by the reported opinion of Audiologists that the Claimant could hear more than the tests were showing; and, further, has not been the subject of any medical evidence that can explain it."

23. The tribunal also referred to and accepted the evidence of the applicant's manageress who said that she had been unaware of the applicant's hearing problems. The tribunal stated:

"The evidence of the Claimant concerning her difficulty in hearing during meetings was... imprecise and left open to considerable doubt after cross-examination."

24. All this resulted in a finding which dated disability through hearing loss as having commenced on 13th February 2002. That date followed a consultation with a Consultant Ear, Nose and Throat Surgeon who produced a report on 14th February 2002. The conclusion of the employment tribunal, therefore, was that the earliest date for a substantial adverse effect demonstrated by the evidence was 13th February 2002 and it rejected an earlier commencement date for the effects.
25. The appeal to the Employment Appeal Tribunal appears to have been put initially on three bases, two of which rapidly fell out of the picture. The first of those derived from a complaint by the applicant that the employment tribunal had not considered one of her witness statements which had been prepared for an earlier hearing and had only considered her later statement. The point sought to be made was that if it had considered the earlier statement some of the evidential gaps which troubled the employment tribunal would have been filled.
26. This was investigated by the Employment Appeal Tribunal and it transpired that the reason for the earlier witness statement not having been considered by the employment tribunal was that it had been expressly disavowed for purposes of reliance at the hearing. The Employment Appeal Tribunal said this:

"We were told by Mr Coghlin [counsel for Great Ormond Street]... that in fact the Claimant, who was represented by [counsel] before the Tribunal, had in fact specifically not relied upon that first statement at the Tribunal hearing. The Claimant, not having been in charge of the case herself, did not feel able to accept that that was the position, and so a question was asked at the Tribunal which has confirmed that, in fact, the statement was specifically not relied upon or referred to, and was removed from the bundle."

27. I should add that counsel representing the applicant in the Employment Appeal Tribunal was different counsel from the one who had appeared at the employment tribunal. In all events, once Mr Coghlin's assertions had been confirmed by the employment tribunal, new counsel representing the applicant did not pursue that aspect of the appeal.
28. Although it is a point which still rankles with the applicant, it seems to me that it cannot possibly be said that there was any error of law on the part of the employment tribunal in failing to address the statement that had been removed. It was removed deliberately and in circumstances which rather close the door upon it.
29. The second matter that was initially to be taken in the Employment Appeal Tribunal was a complaint that the employment tribunal had failed to consider the cumulative effect of the strands of impairment from which the applicant had been suffering. Undoubtedly where there are two or more factors which, on the evidence, might have a cumulative effect sufficient to cross a statutory line, it is incumbent on the employment tribunal to consider them cumulatively. The difficulty so far as that is concerned is that the employment tribunal did have its eye on the question of cumulative effect. It specifically referred, in paragraph 9.15, to the fact that it would consider the cumulative effect. When that was pointed out it resulted in counsel at the Employment Appeal Tribunal again ceasing to pursue it as a ground of appeal.
30. I should add that one also has to bear in mind that, having regard to the fact that the employment tribunal considered that the depressive disorder had not been proved to have the necessary adverse effects under section 1, the scope for cumulative effect, on its findings, was extremely limited in any event. It seems to me that no complaint can now be made about that and the point was properly abandoned in the Employment Appeal Tribunal.
31. The third point taken at the Employment Appeal Tribunal, which was considered at length, was a complaint that the employment tribunal had not taken into account the fact that the applicant had been fitted with a hearing aid in her right ear in November 2001. The case for the applicant was, and is, that a starting date of February 2002 for the statutory disability might have been too late in view of the date on which the hearing aid was fitted, and it was remiss of the employment tribunal not even to have mentioned the fitting of the hearing aid in the course of its lengthy determination.
32. It is undoubtedly true that there is no mention of the fitting in November 2001. The Employment Appeal Tribunal raised the matter with the employment tribunal as to whether there had been evidence about it. The answer given by the chairman with the consent of the lay members was:

"The fact that the Appellant was fitted with a hearing aid to the right ear in November 2001 was considered... It is referred to in the Appellant's witness statement at paragraph 21(a). In addition she referred to it in oral evidence, saying that it was fitted on 22nd November 2001."

33. However, the chairman said, in answer to further questions, that this did not affect the decision for the reasons that were set out in the extended reasons. Those reasons were, first, that the tribunal was only satisfied about the adverse effects on the statutory basis by 13th February 2002. Secondly, it placed some importance on the evidence of the manageress and what it considered to be imprecise answers by the applicant in cross-examination.
34. It was the view of the Employment Appeal Tribunal that although there was no express reference to the fitting in November 2001, the employment tribunal had undoubtedly considered the question of the hearing aid, not just because the chairman said that it had, but also because the decision did refer to the consultation which had resulted in the order for the hearing aid in August 2001.
35. The Employment Appeal Tribunal concluded that the omission to refer expressly to the fitting was not fatal. It added:

"... it is clear that the Tribunal knew of the fitting of the aid, and it is clear that the Tribunal's overall conclusion in relation to hearing loss was that there was no evidence of deleterious effect on day-to-day living, either before or after November 2001."

36. The Employment Appeal Tribunal referred to the observation of the employment tribunal that, although the applicant had contended for an earlier date than 13th February 2002, "...we find the evidence too equivocal, uncertain, unexplained and unsatisfactory and for these reasons we cannot make a finding of a sort that [she] seeks."
37. The Employment Appeal Tribunal carried out a close scrutiny of the medical documentation that lay behind the findings of the employment tribunal and concluded that the employment tribunal had not fallen into legal error on this issue and no legal error flowed from the omission expressly to mention the fitting of the hearing aid.
38. The applicant has sought to pursue that matter again in the course of this hearing. It seems to me that, particularly with the benefit of the clarification which the chairman of the employment tribunal had provided to the Employment Appeal Tribunal, it is not possible to say that the unfortunate omission to mention the fitting of the hearing aid in the course of the decision resulted in any legal error which might have tainted the decision.
39. I turn now to a matter that was not raised in the Employment Appeal Tribunal. The applicant has produced, today, a letter from a consultant at the Whittington Hospital, Mr HR Grant. The letter is dated 15th July 2005. It states:

"Thank you for your letter and enclosing an audiogram from 21st July 2000. I would look on this as a moderate degree of hearing loss."

40. The point that the applicant seeks to make is that that is expert evidence that what she was suffering from in July 2000 was moderate hearing loss, rather than the mild diagnosis reported by the audiologist at that time and referred to by the employment tribunal. In other words, she is seeking to enhance the part of the evidence upon which she relies at the expense of the countervailing evidence which caused the employment tribunal to characterise the position as being unclear.
41. There are insurmountable difficulties about this. It was open to the applicant to produce expert evidence before the employment tribunal about the correct interpretation of the audiogram and the appropriate classification of the degree of hearing loss. That was not done then, it was not done before the Employment Appeal Tribunal. To introduce fresh evidence of that kind in this court is always difficult. It can only be done with the permission of the court and subject to conditions, one of which is that such evidence was not available at the time of the original hearing. Whilst the letter of Mr Grant had not been written at the time of the hearing, there is no doubt that he or others could have been asked to express an opinion. The simple fact is that they were not asked so to do. It is now far too late for that to have any bearing on the matter.
42. I have no doubt that this was a very difficult case for the employment tribunal given the evidence before it. Plainly it had no difficulty in accepting the evidence of depression, but it was faced with significant gaps in the evidence as to the effect of that depression on the applicant's ability to carry out normal day-to-day activities.
43. The 1995 Act is a difficult Act. Nowhere more so than in relation to "deduced effects" upon which the applicant seeks to make a point. The difficulties of that concept have been addressed in this court on previous occasions. Schedule 1, paragraph 6(1), was described by Simon Brown LJ in Woodrup v London Borough of Southwark [2003] IRLR 111 as "this peculiarly benign doctrine". It is because of its generous nature that he went on to say that those seeking to invoke it "should not readily expect to be indulged by the tribunal of fact. Ordinarily... one would expect clear medical evidence to be necessary." That would go, for example, to the consideration of the effects of treatment and absence of treatments, or the effects of the use of a hearing aid or the lack of use of one at a particular time. There was no expert evidence directed to those issues.
44. What Simon Brown LJ was there saying was that this difficult legislation requires a rigorous approach on the part of the employment tribunal. I am entirely satisfied that that is what it received.
45. At the end of the day, this proposed appeal is tantamount to an argument that the employment tribunal was not entitled to reach the findings of fact which it did, and in particular it was not entitled to reach the finding that the relevant commencement date of the statutory disability was 13th February 2002.
46. It is well-known that to establish such a lack of entitlement, or, put another way, perversity on the part of the employment tribunal, is extremely difficult. This has been emphasised most recently in Yeboah v Crofton [2002] IRLR 634 which was referred to in the judgment of the Employment Appeal Tribunal.
47. Whether one considers this as a perversity case or a wrong approach case, in my judgment one comes back to the same conclusion, namely that the employment tribunal carried out a rigorous and rational investigation of the evidence and did not misdirect itself as to the law in any way.
48. I make two final observations. First, at various points the applicant has complained of a lack of fairness in the proceedings. That is an unsustainable complaint. She was represented by counsel on both occasions. I do not underestimate the difficulties which arise, particularly when counsel are instructed late and on a pro bono basis, but there is nothing in the material before me which could sustain any argument of unfairness in the legal proceedings.
49. Secondly, and finally, much of what the applicant says goes to the question of whether the tribunal was or was not entitled to come to a particular view on a particular part of the evidence and goes to the question of what the evidence in fact was. The Employment Appeal Tribunal did not have the chairman's notes of evidence, nor do I, and it is an impossible task to begin to consider whether some part of the decision might have treated some part of the evidence in an inappropriate way.
50. It is well established that if one wishes to contend that the decision is not supported by the evidence, one needs an order from the Employment Appeal Tribunal for the chairman's notes to establish definitively what the evidence was. That was not done in this case. Clearly the applicant now regrets that and she has asked me, in the course of this morning, if I would order the chairman's notes to be produced just for her personal satisfaction at this stage. I regret to say that I am unable to do that. It is an order that is made by the Employment Appeal Tribunal. It is made sparingly and only when the need for it is clearly established. It places immense burdens on busy employment tribunal chairmen. In view of my conclusion on this case, I cannot justify placing that burden on this particular chairman.
51. In my judgment none of the points which the applicant has raised could be sustained on a full appeal, none has a real prospect of success, which is the test which I am obliged to apply, nor is there any other compelling reason why permission to appeal should be granted.
52. I do not doubt or question the sincerity of the applicant's view of the case. However, it was properly investigated by the employment tribunal. In my judgment, neither the employment tribunal nor the Employment Appeal Tribunal fell into any arguable legal error.
53. Accordingly, I shall refuse the application for permission to appeal. I thank the applicant for her careful and courteous submissions.

ORDER: application refused; copy of transcript of judgment to applicant at public expense.