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
(HIS HONOUR JUDGE ANSELL, DR K MOHANTY & MISS SM WILSON)

		Royal Courts of Justice Strand London, WC2
		17th October 2005

1. LORD JUSTICE AULD: Lady Justice Hallett will give the first judgment.
2. LADY JUSTICE HALLETT: In a decision promulgated on 7th May 2003 an Employment Tribunal decided that the appellant was not at any material time disabled within the meaning of the Disability Discrimination Act 1995, and that she was unfairly dismissed from her employment. She appealed to the Employment Appeal Tribunal and the Tribunal (in the form of His Honour Judge McMullen QC) referred the matter back to the Employment Tribunal for review.
3. The Employment Tribunal carried out its review. It found no grounds to suppose that there was a possibility of a successful review of its decision. Therefore the matter found its way back to the Employment Appeal Tribunal by way of an appeal against the first finding, namely that she was not disabled at the time of her dismissal. The Employment Appeal Tribunal found that the Employment Tribunal's decision was unimpeachable, and she now appeals to this court with permission.
4. On 3rd December 1999 the appellant commenced employment with the respondent as a care assistant at a home for young people with learning difficulties. On 9th August 2000 she took a group of children to a stunt show event in Clacton, Essex. During the show a tragic accident occurred in which one of the stuntmen, a motor cyclist, landed on a volunteer and killed him. At that time no record was made of any of the people present in the appellant's party having been affected. The appellant herself made no complaint to her employers of the effect of any accident, although she mentioned to one of her colleagues that night that she was very upset by what she said she had witnessed.
5. As far as her work attendance is concerned, there were a number of days thereafter when she was recorded as not being well; for example, on 31st August 2000, 8th October, 17th November and 24th December.
6. According to her general practitioner on 2nd October 2000 she complained of feeling paranoid and anxious, and said she had been in such a condition for the previous four months, which would take one back to June 2000.
7. On 11th October 2000 she saw her general practitioner, again complaining of feelings of paranoia, and of lying and stealing. She was very concerned about her own behaviour. On 17th October she was referred by her general practitioner for counselling by the mental health team. On 22nd November she consulted her general practitioner again, feeling unwell and tired all the time. On that occasion she was advised to lose weight.
8. Then on 20th February 2001 she was summarily dismissed by her employers on the grounds that she had turned up for work suffering from the effects of an overdose of ecstasy taken the previous weekend. The Tribunal ruled that the respondent failed to follow the proper procedures in relation to that dismissal; hence their finding that it was unfair.
9. On 21st February 2001 the appellant again visited her general practitioner, saying that the counselling sessions that she had attended on several occasions were not helping, and she complained of being depressed and she requested a certification that she was unfit for work for two weeks.
10. On 26th February 2001 her general practitioner referred her to a psychiatrist, Dr Chandra. In the referral letter he set out a history of depression, paranoia and also suicidal thoughts, these thoughts having emerged during the counselling sessions. The appellant, when she went to see the psychiatrist, was not apparently initially forthcoming, but she had a follow-up appointment and at that appointment she was described by the psychiatric team as suffering from a low mood.
11. On 2nd March 2001 she was admitted to hospital unconscious through alcohol. She saw a consultant psychiatrist, Dr Weich. She complained to him of having felt depressed and unhappy over the last 10 years. In a letter dated 4th April 2001 he described her as "an irritable and angry young lady, with a history of mood swings." He further opined:

"She appeared to have become more depressed recently, and she was still expressing suicidal thoughts."

12. On 8th March 2001 the Clacton Citizens Advice Bureau, it seems, raised the possibility that Miss Hill may have a disability discrimination claim. On 21st March 2001 she was certified unfit for work for a period of six weeks. On 16th May 2001 she presented her claim for unfair dismissal to the Tribunal. On 25th May 2001 she was still complaining of feeling low and depressed, and she was prescribed antidepressants.
13. On 31st October 2001 there was a directions hearing before the Employment Tribunal. A separate set of proceedings in the meantime had been going on before the Department of Work and Pensions, and on 6th December 2002 a Social Security Appeal Tribunal found that the appellant was entitled to disability living allowance at the highest rate from 30th October 2001. This was on the basis that there was no dispute that Miss Hill was suffering from post-traumatic stress disorder triggered by the accident in August 2000.
14. Before the Employment Tribunal the appellant's claim was advanced on the basis that she was suffering from post-traumatic stress disorder at the date of her dismissal. The Tribunal therefore had to decide whether or not the appellant was a disabled person within the meaning of section 1 of the Disability Discrimination Act. As supplemented by reference to paragraph 1 of Schedule 1, section 1 provides, where relevant, that:

"... 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.

...

SCHEDULE 1
PROVISIONS SUPPLEMENTING SECTION 1 Impairment

'Mental impairment' includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness."

15. Accordingly, at paragraph 24 of its reasons, the Tribunal stated this:

"The first question arises as to whether the applicant was disabled within the meaning of the Disability Discrimination Act 1995. In this case the applicant relies on a mental illness, post traumatic stress disorder. That is her case before this Tribunal. We remind ourselves of the provisions of Section 1 of the Act, supplemented by reference to paragraph 1 of the first schedule, that 'mental impairment includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well recognised illness'."

16. On this issue the members of the Tribunal received evidence from a number of quarters. A Dr Agbodo, a specialist registrar in the field of psychiatry, provided a report dated 19th September 2001. He did not have the advantage of having examined the appellant himself. He based his report solely on his examination of her medical records. He concluded there was evidence therein of her suffering from mild to moderate depression, a recognised mental illness and one which would distress a patient and affect her ability to work.
17. A Dr Feakins, a consultant psychiatrist instructed on behalf of the respondents, however, had the advantage of examining Miss Hill and indeed interviewing her father. He also considered her medical records. He concluded, as at 21st November 2001, that although:

"... there has been a change in this young lady over the past 18 months or so, she is not suffering from a psychiatric illness. ... She is in a state of general distress."

She did not describe to Dr Feakins the symptoms necessary in his opinion to fulfil the criteria of a depressive disorder.

18. By this time, as the Tribunal noted, there had still been no mention of the possibility of Miss Hill suffering from post-traumatic stress disorder. However, she was then seen by Mr Simon Brown-Lamont, instructed to report on her behalf. He is not medically qualified as such. Since 1997 he has been a practitioner in the field of traumatology and psychotherapy. He carried out a number of recognised tests, which as I understand it would normally be carried out by a psychologist. In a very short report, just over one page, he came to the conclusion that the appellant was:

"... suffering from severe and chronic [post-traumatic stress disorder] debilitation."

19. He suggested that the chronic nature of the appellant's condition was due to the length of time that the appellant had gone without treatment or counselling of any kind for the traumatic event that she had witnessed. Unfortunately, there is nothing in Mr Brown-Lamont's report to indicate the nature and extent of his examination of Miss Hill, apart from stating he carried out the tests to which I have referred. There is nothing to suggest that he has gone into any detail about her witnessing of the accident. The only document attached to his report is a list of the criteria recognised by international bodies as diagnostic of the condition post-traumatic stress disorder. He has ticked a number of those criteria.
20. In the light of Mr Brown-Lamont's findings, Dr Feakins was asked to reconsider his opinion. He reported again on 26th November 2002. Dr Feakins accepted that the symptoms described by Miss Hill were consistent with post-traumatic stress disorder. He went on to say there was no obvious evidence of her malingering, and that he had included in his interview a few questions which should have caught out somebody who was deliberately inventing their symptoms. He did, however, raise in clear terms in his report the possibility that Mr Brown-Lamont may, albeit unwittingly, have implanted the idea of post-traumatic stress disorder in the appellant's head. Mr Brown-Lamont, it seems, had gone over the criteria with her on more than one occasion. Dr Feakins said that Miss Hill might thereby have gained sufficient information about the condition to be in a position to fool the experts. He suggested the parties seek an independent corroboration of Miss Hill's account of witnessing the accident and of suffering the trauma, upon which the disorder was said to be consequent.
21. Dr Feakins, therefore, seems to have been responsible for the Tribunal's embarking on an exercise for which they have been criticised, namely an examination of whether or not the appellant did in fact witness the accident and thereby suffer a trauma. Having analysed that evidence, they came to the conclusion that there was a high probability that in fact she had gleaned what she needed to know about post-traumatic stress disorder from Mr Brown-Lamont and that she had not in fact witnessed the accident. They took into account the evidence of another lady who was present at the scene of the accident, who said that in her opinion it would have been impossible for the appellant to have witnessed the accident from where she stood. They also took into account the fact the appellant herself accepted that she had told no one about what she claims she had witnessed until after the first hearing of her claim in October 2001. Essentially they rejected that she had ever witnessed the accident, and they found as a matter of fact that Mr Brown-Lamont had:

"... implanted into the applicant a crystallised understanding of the symptoms of the condition that she was seeking to rely upon and indeed of the condition itself ..."

22. At paragraphs 25 and 26, the Tribunal found that post-traumatic stress disorder is plainly a clinically well-recognised disorder. It went on to say this:

"The issue is whether the applicant was affected by it. We are unanimously of the view that, as a question of fact, the applicant was not suffering from this condition at the relevant time, that is to say at the date of her dismissal. It is clear that at that time, though she was experiencing various conditions of the mind, none of them amounted to a mental illness. A careful consideration of the medical evidence laid before us, and which we have reviewed in this decision, makes that clear. The high watermark of her position must be Dr Agbodo's report, but of course that was based solely on medical records available to her, and without the benefit of the interview which both Mr Brown-Lamont and Dr Feakins had with the applicant. We also have referred to reports nearer to the date of her dismissal, which reject the suggestion that she was affected by mental illness, particularly we note Dr Weich's report, although of course we bear in mind all the medical evidence.

26. Both Mr Brown-Lamont and Dr Feakins agreed with the Tribunal when questioned that an assessment of a patient in the circumstances of the applicant, involved asking questions which were entirely subjective, the patient could reply to them without being able to offer very much supporting evidence as to the truthfulness or accuracy of the responses. Dr Feakins makes it clear in his last report, that there are no objective tests of this condition. Dr Feakins is entirely neutral on the question of whether the applicant was, in his own words, fooling the psychiatrist. However, he does raise it as a possibility that this might have happened and leaves it to the Tribunal to decide whether in fact it did happen. The matters which cause us some concern are that:- ..."

Here the Tribunal referred to the failure to report the matter until after October 2001. Then the Tribunal went on to say this about Mr Brown-Lamont:

"(ii) We have respect for Mr Brown Lamont and recognise his experience and the expertise he has in the field of traumatology and psychotherapy. He, of course, would be the first to agree that he is not a member of [any] of the Royal Colleges and whilst his evidence is accepted as being honest and objective, it is, in our view, not conclusive. He himself agreed, as we have just mentioned, that the answers to questions are not capable of objective testing and we agree with the submissions by the respondent that it was the process of answering the check list, at page 131 of the bundle, with Mr Brown Lamont, that implanted into the applicant both a crystallised understanding of the symptoms of the condition she was seeking to rely upon and indeed of the condition itself, post traumatic stress disorder. It was that process, it was submitted by the respondent, which enabled her to present to Dr Feakins as a person suffering from those very symptoms. The Tribunal find that this was a high probability, not a mere possibility.

(iii) There is a factual problem in the applicant's case. Her second consultation with Dr Feakins gave a specific and detailed account of what she said had happened. She repeated that account in her witness statement, exchanged very late in the process of this case. That evidence is not supported by the evidence of Mrs Sanders who was a person present at the event. We appreciate Mrs Sanders had a son who is [a] client of the respondent and we appreciate that she may well have grounds to be sympathetic to the respondent in its plight in this case, however, she came across to us as a witness of truth and we believe what she said, that it was not possible, from where she saw the applicant was standing, for the applicant to have witnessed the matter in the way the applicant described in Dr Feakins' report of the applicant's explanation to him of the event."

23. Accordingly it was upon that evidence and those findings that the Tribunal came to the conclusion d that the appellant was not in fact suffering from post-traumatic stress disorder on 20th February 2001, the date of her dismissal. The Tribunal did not therefore move on to the next stage of the proceedings, namely whether or not the respondent had in fact discriminated against the appellant because of any alleged disability.
24. When the matter was remitted to the Employment Tribunal for review by His Honour Judge McMullen QC, two matters in particular caused him concern. One was the fact that the Tribunal appeared to have ignored the decision of the SSAT and, secondly, that the Tribunal had concentrated on the factual weaknesses in the appellant's account of the tragedy, rather than, possibly, focusing on the issue they had to determine as to whether or not she was disabled at the relevant time.
25. When the matter was reconsidered by the Tribunal on review, they accepted that it might well be an anomaly to find one body accepting that Miss Hill was disabled and suffering from post-traumatic stress disorder yet had come to the contrary conclusion. However, they reminded themselves that the definition of disability was not the same in the statute they had to apply and the statute applied by the Social Secuity Tribunal.. Further, the tribunal found that there was nothing in statute or common law which meant that they were bound by the decision of the SSAT.
26. On behalf of the appellant, Mr Kibling seeks to appeal those findings on the following grounds. Firstly, he submits the Tribunal asked itself essentially the wrong question; that it focused on whether or not the appellant had witnessed the accident. He submits it should have focused far more on the question of whether or not she was suffering from post-traumatic stress disorder, and therefore mental impairment at the time of her dismissal. He argues that although the Tribunal posed the correct question at paragraph 24, in effect it has failed to answer it properly. He submits that they have ignored, in coming to the conclusions that they did, the evidence of the appellant's suffering from depression chronicled in her medical records; that they ignored or failed to give proper weight to the opinion of Dr Agbodo that she was suffering from depression at the relevant time, and also that they failed to give sufficient account to Mr Brown-Lamont's conclusion that she was suffering from post-traumatic stress disorder. He submitted that the issue of whether or not she was suffering from such a disorder was a medical issue, and that upon that issue there was medical evidence to support the appellant's contention. By focusing on whether or not she witnessed the accident, the Tribunal, he submits, has erred by wandering into matters of fact rather than concentrating on the medical issue.
27. Mr Kibling criticised, the Tribunal on their findings of fact. He argued they failed to mention in their extended reasons the evidence of the colleague to whom Miss Hill confided her distress on the night of the accident. 28. Further, Mr Kibling argued that the approach adopted by the Employment Tribunal failed to take properly into account or at all the fact that the SSAT had determined the appellant was suffering from post-traumatic stress disorder and is now entitled to the highest rate of care component of the disability living allowance. He argues that as there was a reference in the reports to the appellant being concerned about having to be seen by a psychiatrist instructed to report on behalf of the Department of Work and Pensions, the SSAT must have had before it proper psychiatric evidence and proper psychiatric evidence testifying to the fact that Miss Hill is suffering and was suffering from post-traumatic stress disorder. Unfortunately, we do not have any such evidence before us.
28. In any event, Mr Kibling argues that the fact that the SSAT came to the conclusion that it did is probative and/or compelling evidence of the disability issue, and that the Employment Tribunal has erred in coming to a different conclusion from the SSAT. Mr Kibling argued that, given his review of the evidence before the Tribunal, the Tribunal's findingswere perverse. He submits that the Tribunal also erred when the matter was returned to it for review in not taking into account the absence from the hearing of the coroner's report into the accident. This was something that Mr Hill (who was acting for his daughter at the time) had tried to argue should be available to the the Tribunal, but the Tribunal Chairman had ruled it inadmissible.
29. Mr Kibling was unable to tell us whether or not the coroner's report would in fact have assisted the appellant, but submitted it was a matter that could be considered at a full rehearing of all these issues.
30. Mr Kibling also referred to the possibility of there being a video recording of the scene of the accident, which might show whether or not Miss Hill had been in the position to actually witness the tragedy. Again, we have no idea whether such a video recording exists or the extent to which it would have advanced the appellant's case. Mr Afeeva, who appears on behalf of the respondent, informs us that the first mention of such a video recording was during the course of today's hearing. In any event, Mr Kibling invited this court to remit this matter to the Employment Tribunal for another hearing.
31. For my part, I can state my conclusions relatively shortly. As eloquently as Mr Kibling has advanced Miss Hill's cause, I feel this is an appeal on the facts dressed up as an appeal on the law. The Tribunal's task, as they themselves were well aware, was to decide on the evidence whether or not the appellant was suffering from mental impairment in accordance with section 1 of the Disability Discrimination Act at the time of her dismissal. Their finding that she was not is a finding of fact based on that evidence.Only if Mr Kibling can succeed in showing the Tribunal misdirected themselves or their findings were perverse in that they took into account irrelevant matters or failed to take into account relevant matters can he hope to succeed.
32. I accept that the issue of whether or not Miss Hill was suffering from mental impairment was a medical issue to the extent that the appellant could not have advanced the argument that she was suffering from a clinically-recognised mental illness without medical evidence to support her claim. I also accept that no court or tribunal would come to a decision on the question of mental impairment without giving careful consideration to the medical evidence called before it. That evidence must, however, be considered in the context of the totality of the evidence and the decision is that of the Tribunal not of an expert, however qualified he may or he may not be.
33. As Mr Afeeva helpfully reminded the court, Mummery LJ set out the appropriate test at paragraph 19 of his judgment in the McNicol v Balfour Beatty Rail Maintenance Ltd [2002] IRLR 711:

"The essential question in each case is whether, on sensible interpretation of the relevant evidence, including the expert medical evidence and reasonable inferences which can be made from all the evidence, the applicant can fairly be described as having a physical or mental impairment."

34. The appellant's claim to be mentally impaired was advanced before the Tribunal, and indeed before us, on the basis that the appellant was mentally impaired by reason of post-traumatic stress disorder. As Mr Kibling rightly conceded, it was an expert a consultant psychiatrist, Dr Feakins, who when asked to address the issue of post-traumatic stress disorder, first suggested that whether or not Miss Hill had actually suffered a trauma might be an appropriate starting point in assessing whether or not she was suffering from post-traumatic stress disorder.
35. With the greatest of respect to those who have expressed concern about the Tribunal's having taken into account the circumstances of the accident, it comes as no surprise to me that they followed the doctor's recommendation.
36. For the condition of post-traumatic stress disorder to exist, there has to be a trauma; the kind of trauma that will haunt the patient to the extent that the patient will do anything to avoid being reminded of it. Without such a trauma there can be no post-traumatic stress disorder. The patient may well describe symptoms consistent with having suffered such a trauma, but the patient may be inventing or exaggerating their symptoms or the symptoms may have some other cause.
37. Thus, although Dr Feakins accepted that Miss Hill described the symptoms of post-traumatic stress disorder, he raised the possibility that she may have discovered sufficient about the condition from Mr Brown-Lamont to be able to describe them.
38. Given the way in which the appellant's account of witnessing the accident has come to light and the description she has given, I accept the force of the respondent's submission that there was a very real question mark over whether Miss Hill had ever suffered a trauma.
39. For my part, therefore, I accept that the Tribunal selected a perfectly logical starting point. This was not, however, the finishing point as far as the Tribunal were concerned. They did consider all the evidence before them, including the medical evidence. They were plainly unimpressed by the evidence that the appellant was suffering from post-traumatic stress disorder, coming, as it did, essentially in short from from a therapist. Again, for my part I am not surprised the Tribunal found Mr Brown-Lamont's opinion less than persuasive. Not only was he not medically qualified, but he of course had approached the case on the basis that the appellant had witnessed the accident and that there had been a trauma. Given the Tribunal's finding that there was no such trauma, his opinion must be fundamentally undermined.
40. The only medically qualified person to consider the issue of post-traumatic stress disorder was Dr Feakins. Albeit he conceded she described symptoms consistent with the disorder, on my reading of his opinion he was obviously not convinced that she was; and his findings that she described symptoms consistent with the disorder are a far cry from his giving as his opinion that she was indeed so suffering. Thus there was no evidence from a medically qualified person before the Tribunal that the appellant was suffering from a clinically-recognised mental illness.
41. As far as depression is concerned, contrary to submissions made on the appellant's behalf, the Tribunal did not ignore that evidence. They have summarised it very fully and very carefully in their extended reasons, and I do not intend to rehearse it here. It is true to say that Dr Agbodo is a properly qualified psychiatrist, and he came to the conclusion that the appellant was suffering from depression. His evidence, as the Tribunal found, was the high-water mark of the appellant's case.
42. However, as the Tribunal observed, Dr Agbodo did not have the advantage of examining the appellant. He relied upon her medical records, and these showed a troubled and distressed young woman. In my judgment references in those records to depression suggest what Miss Hill was complaining about, rather than a proper medical diagnosis that she was suffering from a clinically-recognised mental illness. Depression in common parlance is not necessarily, and is in fact rarely, depression as medically defined and a recognised mental illness for the purposes of the Act with which we are concerned. Even busy general practitioners may on occasions use the word loosely.
43. The difficulty facing Miss Hill in this case is that, whatever the records might show and whatever Dr Agbodo might have thought, the Tribunal had before it the evidence of two independent and totally objective treating psychiatrists, Dr Weich and Dr Chandra. Dr Chandra's conclusion, as a result of what he or his team had seen of Miss Hill, was that she was suffering from low mood. As far as Dr Weich was concerned, when he saw the appellant in March 2001, very soon after her dismissal, he noted that she was not suffering from depression. Dr Feakins at the time of his examination in late 2001 came to very similar conclusions to Dr Weich. They both came to the conclusion that this was a young woman in considerable emotional distress, but not one suffering from a recognised mental illness. This was evidence upon which the Tribunal was entitled and did place considerable reliance. Again, for my part, I find the attack upon their findings unsustainable in this respect.
44. I turn lastly to the alleged failure to take proper account of the fact that the appellant has been awarded disability living allowance at the highest rate on the basis that she is suffering from post-traumatic stress disorder. I accept Mr Kibling's argument that it is unfortunate that on the one hand one public body decides that an individual is suffering from post-traumatic stress disorder and that another public body comes to a contrary conclusion. I also accept that the test applied by the Department of Work and Pensions and the SSAT is a very high one. But the fact is, as the Tribunal observed, that the decision of the SSAT was in no way conclusive of the issue. It was for the Tribunal to make up its own mind on the basis of the evidence and submissions it heard. As Mr Afeeva pointed out, the proceedings before the SSAT were non-adversarial. Indeed, they expressly stated that they based their findings on two agreed facts: firstly, that the appellant was suffering from post-traumatic stress disorder and, secondly, that it had been triggered by the accident that she had witnessed in August 2000.
45. In any event, again as the Tribunal observed, the SSAT applied a different statute and a different test. Disability as far, as the two Acts are concerned, appear to be different concepts upon which I do not need to dwell for the purposes of my judgment. There is, as Mr Afeeva rightly submitted, no rule or principle of law that the Employment Tribunal is bound to follow decisions of the SSAT. Had the Employment Tribunal felt itself virtually bound to do so, as Mr Kibling's submissions appear to suggest, then the respondents themselves would have had a justifiable grievance. The decision was at best persuasive and, in the light of the Employment Appeal Tribunal's own findings, not even that.
46. Thus I am satisfied that the Tribunal asked itself the appropriate questions. It took into account all relevant matters and it did not take into account irrelevant matters. The extended reasons provided are in fact very careful, thorough and balanced. For my part, I am satisfied that their conclusions were unimpeachable on the facts and certainly cannot be described as perverse. The evidence justified the conclusions drawn. The Employment Appeal Tribunal came to the same conclusion for the same reasons. Accordingly, for my part, I would dismiss this appeal.
47. SIR PETER GIBSON: Despite the well-presented arguments of Mr Kibling for the appellant, I too have reached the clear conclusion that this appeal must be dismissed. Parliament has entrusted Employment Tribunals with the function of finding the facts in employment cases, including discrimination cases such as this.
48. The jurisdiction of the Employment Appeal Tribunal and of this court is limited to a point of law. It is not enough that an appellant can show that there was material on which an Employment Tribunal might reach a conclusion other than that which the relevant Employment Tribunal reached. What has to be shown is that the Employment Tribunal did not have any material to support its findings or conclusion, or, if there was such material, that the findings and conclusion were perverse.
49. The Employment Tribunal, in a careful and even-handed decision, found that, on the only way in which the appellant presented her case to that Tribunal; that is to say, that she was disabled, within the meaning of the Disability Discrimination Act 1995, by reason of an impairment, post-traumatic stress disorder ("PTSD"), that she was not suffering from that condition at the date of her dismissal. Although it was suggested that the Employment Tribunal may not have asked itself the correct question when it determined that, as a matter of fact, the appellant had not witnessed the traumatic event she claimed to have seen, it is plain from paragraphs 24 and 25 of the Employment Tribunal's decision that it did ask itself the right question.
50. Further, in my judgment it was plainly open to the Employment Tribunal to consider whether as a matter of fact the appellant had witnessed the event said to have caused the trauma from which the PTSD arose. In this the Employment Tribunal was encouraged by the consultant psychiatrist, Dr Feakins. In circumstances where there was a real question whether the appellant was suffering from PTSD in the way that she claimed, it was simply common sense that the Employment Tribunal should consider that factual question. It cannot be said that the Employment Tribunal made any error of law in deciding the factual question against the appellant. The medical evidence available to the Employment Tribunal provided ample support for its conclusion that the appellant was not suffering from PTSD at the relevant date. The appellant comes nowhere near to overcoming the high hurdle of perversity.
51. Mr Kibling also suggested that the Employment Tribunal failed to give sufficient weight to the determination by the Department of Work and Pensions that the appellant was entitled to the highest rate of disability living allowance. In my judgment, there is no substance in that suggestion either. The Employment Tribunal, in its review decision, pointed out that the definition of disability for the purposes of the Disability Discrimination Act was an exclusive definition. There is no definition in the Social Security Contributions and Benefits Act 1992 of disability, nor is there any concept of mental impairment in that Act. We have not provided with the materials of the medical evidence relevant to the decision of the Social Security Appeal Tribunal on the appellant's disability living allowance. The issue of disability was not in issue in the proceedings before that Tribunal, which were in any event concerned with whether or not it was established that disability living allowance was payable from 30th October 2001. The relevant date for the appellant's disability discrimination claim was 20th February 2001.
52. It would have been a dereliction of duty for the Employment Tribunal not to reach its own conclusion whether the appellant had been suffering from PTSD at the date of her dismissal. Nor do I consider that there is anything in the further point now taken that the Employment Tribunal at the review hearing erred in law in failing to order that the coroner's report and a video of the event in August should have been produced for consideration by the Employment Tribunal. It was not known what was contained in the additional material, and it could not be said that that material would have been highly probative of the appellant's case or, indeed, would have assisted it at all. The first application for adducing that evidence, we are told, was made either on the first or on the second day of the Employment Tribunal hearing, and that application was repeated at the review hearing. It cannot be said that there was any error of law in the Employment Tribunal refusing to allow such further evidence at the hearing or ordering at the review hearing the production of that unknown material.
53. In my judgment, it has not been shown that there was any mistake of law made by the Employment Tribunal in deciding, as it did at the review hearing, that they were unpersuaded that there were grounds to support a successful review of its decision. On the contrary, it seems to me that the conclusion at the review hearing was entirely correct.
54. For these as well as the reasons given by my Lady, I too would dismiss this appeal.
55. LORD JUSTICE AULD: The critical question for the Employment Tribunal, as a precursor to its consideration whether Miss Hill's employer had discriminated against her by reason of a disability in the form of a mental impairment under section 1 of the 1995 Act, was whether she was suffering at the time of her dismissal, as she claimed, from post-traumatic stress disorder. By the very nature of that particular form of mental impairment, the Tribunal had to consider whether her condition, if mental impairment it was, had been engendered by the claimed trauma. The Tribunal's answer to that question depended, not only on medical evidence as to the consistency of her condition with having been engendered by trauma, but also (1) that she had in fact been subjected to such trauma and (2) that it had affected her in the way she claimed.
56. For the reasons given by my Lady by reference to the totality of the evidence, including the history of Miss Hill's long delay in reporting or referring to the trauma relied on as a cause or contributor to her condition, I agree that the Tribunal was entitled to conclude that she had not established that she was suffering from post-traumatic stress disorder at the material time.
57. Thus, I can see no respectably arguable error of law in that the conclusion, and therefore no basis for the Tribunal going on to consider the further necessary element of her claim: discrimination by reason of some disability. Accordingly, I too agree that the appeal must be dismissed.

ORDER: Appeal dismissed with costs summarily assessed in the sum of £8,638.22; detailed assessment of the applicant's public funding certificate.

(Order not part of approved judgment) ______________________________