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 KEITH)

		Civil Justice Centre 2 Park Street, Cardiff Wales CF10 1ET
		27 November 2013

1. LORD JUSTICE UNDERHILL: The issue raised by this appeal is a narrow one and I can accordingly set out the background very shortly. More detail can be found, by anyone interested, in the clear summary given by Keith J in the Employment Appeal Tribunal.
2. The claimant in the underlying proceedings (the respondent in this appeal) who appears before us unrepresented and has made her submissions articulately and well, was a nurse employed by the appellant ("the Board") at the Princess of Wales Hospital in Bridgend until her resignation with effect from 3 September 2009. She brought three claims in the Employment Tribunal alleging racial discrimination (including harassment) disability discrimination and unfair (constructive) dismissal. Those claims were heard in the Employment Tribunal in Cardiff, chaired by Employment Judge John Thomas, in November 2010 and were dismissed in their entirety. The decision was announced at the end of the hearing, but for reasons which I need not trouble to set out there was a long delay in the provision of written reasons.
3. We are concerned only with the claim of disability discrimination. At a hearing under rule 3(10) of the Employment Appeal Tribunal Rules 1996, His Honour Judge Richardson accepted that there were potentially two arguable grounds of appeal. At a subsequent preliminary hearing, with His Honour Judge Peter Clark presiding, the appeal was allowed to proceed on those grounds, which were formally pleaded by counsel then appearing for the claimant pro bono. I should add that at the rule 3(10) hearing Judge Richardson had asked the employment judge to answer two specific questions under the so-called Burns/Barke procedure.
4. The claimant's case of disability discrimination was based on what she said was a failure to make reasonable adjustments, as required by section 4A of the Disability Discrimination Act 1995, in respect of a depressive illness from which she said that she had been suffering from at least in May 2007, when there is an entry in her medical notes recording a diagnosis of depression. The Board accepted that the claimant had indeed been suffering from a disability, but only from May 2008. The Tribunal proceeded on the basis that that was indeed the date of the commencement of the claimant's disability. It found that the duty under section 4A had never arisen, because she had never identified a provision criterion or practice which put her at a substantial disadvantage by reason of her disability.
5. The two grounds of appeal which were allowed to proceed to the EAT are a little diffuse but they can be summarised as follows:
6. (1) that the Tribunal's finding about whether the duty under section 4A had arisen was flawed and was in any event insufficiently reasoned; and.
7. (2) that the Tribunal had simply proceeded on the basis of the Board's concession about the date that the disability commenced (which I will refer to, as a convenient although perhaps slightly inaccurate shorthand) as "the date of disability", and had not given any consideration to the evidence on which she relied as showing that she had been disabled for at least a year previously.
8. (As pleaded, those two grounds are in fact the other way around, but that order seems more logical.)
9. The appeal was heard by the Employment Appeal Tribunal, Keith J presiding, on 16 April 2013. It allowed the appeal on what I have called the first ground, finding a fundamental confusion - exacerbated rather than dispelled by the Burns/Barke answer on this part of the case - in the Tribunal's reasoning on the question of whether the section 4A duty had arisen. As regards the second ground, it held, on the basis of the answer to the relevant Burns/Barke question, that the Tribunal had in fact made a positive finding, on the basis of the evidence, as to the date of disability. The employment judge had in his Burns/Barke answer set out with some particularity the evidence on which the Tribunal had formed its conclusion. Keith J summarised that evidence at paragraph 15 of the judgment and said at paragraph 18:

"In the light of the Employment Judge's answer to the first question the Tribunal was asked, there can be no doubt that having investigated the matter for itself, the Tribunal had found that Mrs Rodriguez-Noza could only be proved to have become disabled in 2008.

"Having read with care the points which the Employment Judge made when answering the first question the Tribunal was asked, we think that was a conclusion which it was reasonably open to the Tribunal to reach."

10. The formal order of the EAT disposing of the appeal was that "the disability discrimination claim be remitted for rehearing to a differently constituted Employment Tribunal".
11. The effect of that order, so framed, is that on remittal the Tribunal will be entitled, and indeed obliged, to reconsider all aspects of the disability discrimination claim including the date of disability issue. It is the Board's case that that is wrong. It says that, the EAT having declined to interfere with the Employment Tribunal's finding as to when the disability commenced, it was wrong in principle that the claimant should have the opportunity of reopening that issue. Mr Allsop for the Board puts it two ways: first, that the EAT did not have jurisdiction under section 35 of the Employment Tribunals Act 1996 (being the section which sets out its powers as to the disposal of appeals) to remit an issue on which it had upheld the decision of the Employment Tribunal; and, secondly, that even if the EAT had the relevant power it was wrong in principle for it to exercise it in the way that it did.
12. The Board's initial response was to apply to the EAT for a review of this aspect of the decision under section 33 of the 1996 Act. Keith J refused a review. He said:

"The Board applies for a review of that part of the judgment in which it was said that when Mrs Rodriguez-Noza's claim of disability discrimination is heard again, the tribunal will not be bound by the previous tribunal's finding on when Mrs Rodriguez-Nova became disabled. I refuse that application. I appreciate, of course, that the ground of appeal which challenged that finding was not upheld. But that does not mean that that issue cannot be addressed again. The previous tribunal's conclusion that Mrs Rodriguez-Noza had not been discriminated against on the ground of disability had to be set aside because of serious flaws in the tribunal's approach, and for the reasons given in para. 26 of the Employment Appeal Tribunal's judgment, Mrs Rodriguez-Noza's claim was remitted to a differently constituted tribunal "to consider the claim afresh". The Employment Appeal Tribunal thought that the flaws in the previous tribunal's approach were sufficiently serious to warrant the question of when Mrs Rodriguez-Noza became disabled being reconsidered, even though, when one looked only at the previous tribunal's approach to that one issue, its approach to that issue was not legally flawed. Its decision on that issue might have been infected by the flaws in its approach to the whole question of disability discrimination identified in the Employment Appeal Tribunal's judgment. By the same token, it will be open to the tribunal to consider whether the Board applied a provision, criterion or practice to Mrs Rodriguez-Noza (and what it was). Indeed, but for the Board's concession that Mrs Rodriguez-Noza had become disabled within the meaning of the Act (albeit only by June 2008), it would have been open to the tribunal to reconsider whether Mrs Rodriguez-Noza had become disabled at all."

13. I do not, with great respect, find that convincing. I fully accept that there will be circumstances in which a finding by the EAT that an Employment Tribunal has erred on one issue, or on one part of its reasoning, may have a knock-on effect on its reasoning on other issues, even if that other reasoning is unimpeachable if viewed in isolation. In such a case the EAT can permit the whole case, or in any event that part which might be affected by the error which it has found, to be reconsidered. But this does not seem to me to be such a case. Keith J does not identify any basis for his statement that the Tribunal's decision on the date of disability issue "might have been affected by the flaws in its approach to the whole question of the disability of the patient". The two challenges to the reasoning of the Employment Tribunal - that is the section 4A point and the date of disability point are quite distinct. I can see no basis on which the Employment Tribunal's errors of reasoning in relation to the latter could justify remitting the former in circumstances where the EAT had expressly found that its decision on the former was unimpeachable.
14. In my view therefore the EAT's order was wrong in principle. That is, subject to one point, sufficient to dispose of the appeal. I need not consider Mr Allsop's other way of putting it, namely that the EAT had no jurisdiction under section 35 to make such an order; and I prefer not to do so in circumstances where one party has not been professionally represented.
15. However, there is a further aspect. The claimant invites us to hold that the ET's finding on the date of disability issue was substantively wrong and thus that the EAT's order should be upheld on that (different) basis. She says that she could and would have established this if she had been allowed to argue the point in the EAT, but that what happened was that, unusually, Mr Allsop for the Board was asked to go first, notwithstanding that the Board was the respondent; and that, having heard his submissions, Keith J said that the Tribunal did not need to hear from her. She says that if she had had the opportunity to speak at that point she would have been able to persuade the EAT either to decide the date of the disability issue there and then in her favour, using its powers under section 35(1)(a) of the 1996 Act, or at least to remit it on the basis of a decision that the Tribunal's decision was flawed rather than, as actually happened, only on the coat-tails of the other issue (with the result that she is now vulnerable to the argument advanced by Mr Allsop on the Board's appeal).
16. Strictly speaking, this point should have been taken by way of a respondent's notice, but Mr Allsop very fairly did not suggest that he was unable to deal with it. He did make a rather different point, namely that the pleaded grounds of appeal to the EAT, if they were carefully analysed, showed that the only point being taken was that the Tribunal had not considered the point at all, rather than that its conclusion was not one that was open to it on the facts: in other words, perversity was not argued. Nevertheless, we have thought it right to allow the claimant the opportunity to develop before us the arguments that she would have developed before the EAT if she had been permitted to do so. She took us through her skeleton argument. I have to say that much it was concerned with rather different questions. It did, however, include a cross reference to her medical records which showed her medical attendances and treatment received during the relevant period. The documents referred to also include contemporary correspondence relevant to her state of health during that period.
17. The medical records to which the claimant took us were before the Employment Tribunal. In his Burns/Barke response the employment judge explained why the Tribunal did not regard the evidence of her various medical attendances during the relevant period, including the occasion when the diagnosis of depression was recorded in May 2007, as establishing that she was suffering from a disability before May or June 2008. It is, I think, fair to set out the entirety of his answer:

"1) The Claimant was a disabled person within the meaning of the act from June 2008. This was the date from which the Respondent conceded disability.

2) Prior to this date, the Claimant suffered from a mental impairment, but had not in our view established that it had a substantial adverse effect on her day to day activities.

3) The extent of her evidence on this issue was that she was "just sitting at home" not "fit to work".

4) She had been absent from the 16th July 2007. Her initial absences were due to "work related stress" (see Dr Mansouri's report of the 3rd September 2007 - Page 31).

5) In a report dated the 20th December 2007 at Page 43, Dr Mansouri recorded that she had been back at work, enjoying her work and undertaking her full range of duties without any reported problems.

6) In a report to Mrs Teresa Weston, the Head of Nursing dated the 27th February 2008 at Page 47 Dr Mansouri recorded of the Claimant that "she expressed her wish to return to her substantive post, providing the inter-personal relationship difficulties are dealt with appropriately."

7) In a report dated the 31st March 2008, prepared by Dr Stephen K Madelin to Dr Mansouri a history of fluctuating amounts of anti-depressant drugs was recorded and noting that an inability to work was because in his view her distressed[sic] and unhappiness working for the Respondent was so deeply engrained (see Page 51 of the bundle).

8) At Page 56 of the bundle, there is a letter from Mr Hugh McDyer dated the 29th May 2008, which (to paraphrase) confirms the continued suspicion of the Claimant.

9) By a report of the 10th November 2008 from Dr Mansouri at Page 139 the 2nd Paragraph confirms that the Claimant:

"has been diagnosed with a long standing common mental health problem for which she receives appropriate medical treatment through her family Doctor and is also under the care of other support services. Her perceived work related issues that you are aware of have had an impact on her mental wellbeing. Regrettably her symptoms have not altered significantly over the past few months and I am unable to add anything to her treatment plan that can be valuable."

10) We concluded that even though there was minimal evidence of substantial adverse effect on her day to day activities, we accepted that looking back from the report at Page 139 over a period of "past few months" reported by Dr Mansouri. We accepted that by June 2008 that there must have been a point reached over the passage of time from the 16th July 2007, when her condition would have satisfied the statute definition and whilst it was a matter for the Tribunal's judgment, we accepted the concession made by the Respondent."

18. I agree with Keith J that that material not only establishes that the Employment Tribunal had considered the date of disability issue substantively, rather than simply relying on the Board's concession, but also that it had reached a legitimate conclusion that the material did not prove that the appellant was suffering from a disability prior to May 2008.
19. The essential answer to the claimant's case on this aspect is that a diagnosis of depression, and other symptoms consistent with depression, does not necessarily mean that the person in question is at the material time suffering from a disability within the meaning of the 1995 Act. A depressive illness is not necessarily in law a disabling illness. Of course, it will constitute an impairment within the meaning of section 1 of the Act, but it is necessary to prove also that it is an impairment which "has a substantial and long term adverse effect on [his or her] ability to carry out normal day to day activities". Schedule 1 of the Act glosses the phrase "long term adverse effect" by saying, (to paraphrase) that it must be likely to last more than 12 months. The Tribunal's findings do not mean that she was not unwell during the relevant period but only that that illness did not in the early stages satisfy the particular requirements of the Act. It is, as I say, that distinction which, with respect, the claimant has failed to appreciate.
20. I therefore believe, having ourselves now heard the submissions which the claimant did not have the opportunity to deploy before the EAT, that Keith J's conclusion that the decision was one to which the Employment Tribunal was entitled to come was correct; and, accordingly, that the claimant has not suffered any prejudice from the particular course which the hearing before the EAT took.
21. For those reasons I would allow the appeal and vary the order of the EAT by excluding from the remitted issues the question of the date at which the claimant first became disabled, which is to be taken, as per the finding of the Employment Tribunal, as May 2008.
22. I should add for completeness that the claimant appears to have misunderstood the effect of the EAT's order, or perhaps the points for which Mr Allsop was contending, in that she thought that it might be the case that the date of disability issue would be remitted to the original Employment Tribunal whereas the other issue would be remitted to a fresh Employment Tribunal. I do not believe that that was what the order meant, but in any event the point is now clear.
23. LADY JUSTICE MACUR: I agree.
24. THE MASTER OF THE ROLLS: I also agree.