United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S NEAMAN (of Counsel) Messrs Copley Clark & Bennett Solicitors 36 Grove Road Sutton Surrey SM1 1BS
For the Respondent	MR D BASU (of Counsel) Lambeth Legal Services London Borough of Lambeth Town Hall Brixton Hill London SW2 1RW

JUDGE PETER CLARK:

1. This is an appeal by Mr Kapadia against the majority decision (Chairman: Mr D M Booth dissenting) of an Employment Tribunal sitting at London (South) on 8th–10th June 1998, dismissing his complaint of disability discrimination against his former employer, the London Borough of Lambeth ["Lambeth"] on the grounds that he was not disabled within the meaning of s.1(1) of the Disability Discrimination Act 1995. That reserved decision, with extended reasons, was promulgated on 18th June 1998.

The Issue

2. The sole issue, for our purposes in this appeal, before the tribunal was whether the appellant was disabled within the meaning of the Act.

Preliminary observations

3. We think that mention should be made at the outset of two significant matters:

(1) The respondent called no oral evidence before the tribunal on the disability issue. Apart from the documentary evidence, three witnesses were called on the appellant's side; the appellant himself, his general practitioner, Dr Namasivayam, who had at all relevant times since April 1995 been treating the appellant for anxiety neurosis with depression and Mr John Revell, Consultant Clinical Psychologist at the Maudsley Hospital, to whom the appellant had been referred by Dr Namasivayam in June 1995. All three witnesses were cross-examined by Counsel for Lambeth, Mr Basu.

(2) The Employment Tribunal reached their decision in this case without the benefit of the helpful guidance contained in the judgment given by Morison P on behalf of the EAT in Goodwin v The Patent Office [1999] IRLR 4. Judgment in that case was delivered on 21st October 1998.

The Facts

4. The appellant was born in April 1937. He is a qualified accountant. He commenced employment with Lambeth in its Directorate of Finance in April 1990. In 1995 he was graded PO2/3.
5. In April 1995 he consulted his General Practitioner complaining of anxiety, stress, tension and depression. Dr Namasivayam referred him to Mr Revell, who acted as a counsellor, seeing the appellant about 20 times over the next two years. Dr Namasivayam diagnosed reactive depression which was accepted by both sides as a clinically well-recognised illness.
6. In early 1996 the accountancy division was restructured. The appellant applied for and obtained the post of Senior Accountant at grade PO4, a promotion. In his application he said:

"I have the enthusiasm, commitment and stamina necessary (a) to work under severe pressure and meet tight deadlines (b) to work on my own initiative and (c) to effectively plan own and others workload."

7. The appellant took up his new post on 8th April 1996. His manager was Iain Millar. The appellant soon complained that his duties were different to those set out in his job description. He started to take increasing time off work for illness. In the year beginning 1st April 1996 he had 16 days certificated sickness and 20 days uncertificated, covering flu, nerve inflammation, viral infection, eye problem, but none for stress. On one absence monitoring form there appeared "currently under pressure of work causing stress and anxiety", and on another "headaches probably partly due to stress." He had a further 14 days off for dentist and doctors appointments together with other shorter absences for appointments in work time.
8. On 9th April 1997 Mr Millar met with the appellant under Lambeth's policy for monitoring sickness absences. Mr Millar discussed the appellant's record and advised him of his intention to refer him to the Council's medical adviser for assessment. Thereafter the appellant saw his General Practitioner who signed him off sick on the grounds of stress. He remained off work until he left Lambeth's employ in July 1997.
9. The appellant was referred to Dr Grime, a Registrar in the Department of Occupational Health and Safety at King's College. Dr Grime saw the appellant and wrote to Mr Revell and Dr Namasivayam asking for a diagnosis and likely prognosis. Both stated that in their opinion the appellant's problems were almost entirely due to his work and both recommended retirement on medical grounds. Dr Grime advised Mr Millar that the appellant was "permanently unfit for his duties as a senior accountant for Lambeth and should be considered for ill-health retirement."
10. Thereafter, the appellant was retired on medical grounds with an immediate pension effective on 30th June 1997.

The Employment Tribunal decision

The majority expressed their opinion at paragraph 19 of their reasons thus:

"19. The majority decision was that whilst we accepted the diagnosis of reactive depression we would on all the evidence be satisfied that this had more than a trivial effect upon the Applicant's ability to carry out normal day to day activities. We note that he himself in 1996 whilst he was having treatment proclaimed himself fit to work under pressure and to apply for a senior post, professing sufficient knowledge and experience to carry out those duties competently. We note that there had been no criticism of his work and that, although he had a number of absences none of these was for stress. They were eye tests, dental treatment, flu and a small operation, and whilst towards the end it was acknowledged that he found work stressful there was no evidence at all that this affected his ability to do his work or had any adverse effect at all on his day to day activities. We did not not, for example, hear from his wife or any friends or colleagues, nor did he give evidence of his day to day activities other than an oblique reference to irritability. We therefore concluded the Applicant had not satisfied the onus which is upon him to show us that he was disabled within the meaning of the Act and we therefore dismissed this application."

11. In his dissenting opinion the Chairman said this at paragraphs 21–22:

"21. I accept the majority comments that the Applicant may not have shown obvious signs of disability, although it is clear that Mr Millar had come cause for concern as he specifically refers to stress in his reference to Dr Grimes. However, Dr Namasivagyam had signed him off sick for a long time which could not have been warranted by a condition that was only to have a trivial adverse effect on day to day activities.

22. It was unfortunate for the Respondents that Dr Grimes had refused to hand over his report to them on the first morning of the hearing, but counsel had taken the decision to go on in the absence of that report and that was a matter to him. In those circumstances I did not see sufficient evidence to counter the experience and opinions of the doctors and therefore concluded that:

(i) the Applicant suffers from a mental impairment

(ii) that impairment was sufficient to have a substantial and long-term effect upon his ability to carry out normal day to day activities and he was therefore disabled for the purposes of this act."

12. We should add that all three members of the tribunal rejected Mr Neaman's submission on behalf of the appellant that once it was shown that the appellant has a clinical illness and which has an adverse effect on memory or ability to concentrate then there is no reason for the tribunal to look at day to day activity and certainly not at work activity. He relied on Schedule 1, paragraph 4 to the Act. That was a bad point and is not pursued in this appeal.

Disability

S.1 of the Act provides:

"Meaning of "disability" and "disabled person"

(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.

(2) In this Act "disabled person" means a person who has a disability."

S.3 provides for the Secretary of State to issue guidance. Guidance under s.3 was issued on 25th July 1996, and a Code of Practice on the same day.

Goodwin v The Patent Office

By reference to the statute the EAT identified four questions when considering whether a person is disabled:

(1) Does the applicant have an impairment which is either mental or physical?

(2) Does the impairment affect the applicant's ability to carry out normal day-to-day activities in one of the respects set out in Schedule 1, paragraph 4(1). Here, the potentially relevant provision in the schedule is at paragraph 4(1)(g):

"memory or ability to concentrate learn or understand"

(3) Is the adverse effect substantial? "Substantial" means "more than minor or trivial". (Guidance. Paragraph A1). The tribunal should examine how an applicant's abilities have been affected whilst on medication and then consider the "deduced effects" - the effects which they think there would have been but for the medication - and whether the actual and deduced effects on ability to carry out normal day-to-day activities are clearly more than trivial. (Schedule 1, paragraph 6).

(4) Is the adverse effect long-term? By Schedule 1 paragraph 2 the effect of an impairment is long-term if it has lasted at least 12 months. Here, the appellant's condition was continuous from at least June 1995 and was therefore long-term.

The Appeal

13. The majority lay members of the tribunal accepted that the appellant had a mental impairment. It is not disputed that any adverse effect was long-term. However, they found that the effect of the impairment did not have more than a trivial effect on the appellant's ability to carry out normal day-to-day activities. It was not ‘substantial’.
14. In reaching that conclusion, as appears from paragraph 19 of the reasons, the majority held that there was "no evidence at all that this [the mental impairment] affected his ability to do his work or had any adverse effect at all on his day-to-day activities."
15. In support of the appeal Mr Neaman takes essentially two points. First he submits that the majority were simply wrong to say that there was no evidence that the mental impairment had any adverse effect on his day-to-day activities. Pausing there, that is the statutory test, not whether the impairment had an adverse effect on his ability to work.
16. In support of that submission he relies on the following evidence which was before the tribunal and not contradicted by evidence called by the respondent;

(1) Mr Revell, in his written report dated 31st December 1997, stated:

"I can state that in my opinion there is no doubt that Mr Kapadia's symptoms of anxiety and depression constituted a mental impairment of sufficient duration and severity to have had a substantial and long-term effect on his ability to carry out normal day-to-day activities …"

(2) Dr Namasivayam, in a report dated 13th January 1998, stated:

"During the time of his treatment and absence he had considerable difficulty concentrating. It effected his sleeping pattern and he experienced degrees of agoraphobia."

(3) In his witness statement, which he read out to the tribunal as part of his evidence-in-chief, the appellant said:

"I was unable to sleep, lost my appetite, suffered from depression, irritability and mood swings, and began to suffer from a lack of motivation progressively.

Over this long period of time from around March 1995, my memory and my ability to concentrate also became worse. I had difficulty with absorbing and organising information and I took longer to complete work tasks. I became progressively more tense. My ability to communicate with my colleagues and other people adversely affected."

17. In these circumstances, submits Mr Neaman, it cannot be said that there was no evidence that the appellant's mental impairment had a substantial effect upon his ability to carry out normal day-to-day activities.
18. However, if he failed in his primary submission Mr Neaman took a second point. The majority does not appear to have considered the "deduced effects" on the appellant's day-to-day activities absent medical treatment. (Schedule 1, paragraph 6).
19. 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 with Mr Revell there would have been a very strong likelihood of total mental breakdown and the need for psychiatric treatment including in-patient treatment. Mr Basu 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. We repeat, no medical evidence was called by the respondent to contest those expressions of opinion.
20. It follows, submits Mr Neaman, on either or both of the above grounds, that the majority reached an impermissible conclusion on the evidence before them. Their decision was perverse at law.
21. In response Mr Basu, in relation to the first point in the appeal, urged us to read the majority's finding that there was "no evidence" as meaning no evidence which they accepted. He submitted, in terms, that you do not need a doctor to tell you whether or not someone is mentally disabled when you have got them in front of you. The majority was entitled to reject the opinion of the two doctors called on behalf of the appellant who said that the appellant was mentally disabled at the time of the hearing. The majority were entitled to apply their own judgment as to the effect on the appellant by seeing how he behaved in the witness box. He was able to refer to documents in the large bundle without being taken there by Counsel. Further he had managed a demanding job with Lambeth.
22. Pausing there, we reject that submission. We think that the majority meant what they said. There was no evidence as to the effect on day-to-day activities in the sense that no evidence was called from friends, family or colleagues. However, there was uncontested medical opinion evidence from the appellant's General Practitioner and Consultant Clinical Psychologist that he was disabled within the meaning of the Act.
23. We do not preclude the possibility that a tribunal may, for good reason, reject uncontradicted medical evidence. However that is not what happened here. The majority simply disregarded the medical evidence. That, in our view, is wholly impermissible.
24. As to the "deduced effects" Mr Basu made this bold submission. He contended that the counselling sessions held by Mr Revell with the appellant did not constitute "treatment" within the meaning of Schedule 1, paragraph 6.
25. Paragraph 6 is headed "Effect of medical treatment" and provides so far as is material:

"6.-

(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"

26. The basis for that submission is that in cross-examination Mr Revell agreed that his counselling sessions consisted of talking to the patient. That, submits Mr Basu, cannot amount to treatment.
27. We reject that submission. In the absence of any medical evidence to the contrary, we are quite satisfied that counselling sessions with a Consultant Clinical Psychologist constitute treatment within the meaning of paragraph 6. It is clear that the tribunal so found, see their reasons, paragraphs 5 and 19.
28. In so holding we reject Mr Basu's further contention that the Counselling sessions with Mr Revell did not constitute treatment because they were directed to reduction of the appellant's symptoms, not to the correction of the mental impairment. It seems to be suggested that a series of counselling sessions which prevents the patient from needing drug treatment for his condition does not amount to treatment. We simply cannot accept that assertion from the Bar.
29. Finally, Mr Basu submits that the majority's conclusion is a triumph for the system of lay members, exercising common sense and not being overawed by the views of expert witnesses. Whilst we recognise the strength of having lay members with industrial experience on Employment Tribunals, we cannot accept that that common sense approach extends to disregarding completely the medical evidence before the tribunal, in favour of a judgment apparently made solely on the basis of how the appellant appeared to the lay members when giving his evidence.

Conclusion

30. It follows, in our judgment, that the majority fell into error in reaching a conclusion based on the false premise that there was no evidence that the appellant's impairment had any adverse effect at all on his day-to-day activities, and in wholly disregarding the deduced effects of that impairment, despite submissions on the point made by Mr Neaman below, in circumstances where they did not reject the medical evidence before them, but simply ignored it. The appeal is allowed.

Disposal

31. Mr Neaman urges us to substitute a finding that the appellant was disabled within the meaning of the Act. The evidence, at any rate in relation to the deduced effects, goes all one way and demonstrates a substantial adverse effect.
32. Mr Basu invites us to remit the issue of disability to the Employment Tribunal if, as is the case, we allow the appeal.
33. We prefer Mr Neaman's submission. The respondent chose to proceed without medical evidence. The consequence is clear in our view. For the reasons stated by the Chairman, which we adopt, this is a case in which, as a result of their self-misdirection, the majority's decision is plainly and unarguably wrong on the facts, and those facts do not require amplification or re-investigation, nor were they contradicted in evidence. Accordingly we feel bound to substitute our own conclusion based on the correct application of the law to those facts. Dobie v Burns [1984] ICR 812, 818, per Sir John Donaldson MR, as qualified by the Court of Appeal in Hellyer Brothers Ltd v Mcleod [1987] ICR 526, 547D, per Slade LJ, approving the observations of Waite J in that case [1986] ICR 122, 130.
34. Accordingly we shall make a declaration that the appellant was disabled within the meaning of s.1 of the 1995 Act and direct that the complaint of disability discrimination be remitted to a fresh Employment Tribunal for determination on its merits, together with the appellant's complaint of unfair dismissal.

Leave to appeal

35. At the close of the argument before us we announced our decision in this appeal. Mr Basu made application for leave to appeal to the Court of Appeal. For the reasons now given in this judgment we dismiss that application on the grounds that the proposed appeal by the respondent has no real prospect of success.

Costs

36. Mr Neaman applied for the appellant's costs in the appeal. In our judgment it cannot be said that in seeking to hold a decision of the tribunal below the respondent has acted unreasonably in conducting these proceedings. There are no grounds for ordering costs against the respondent under rule 34(1) of the rules. Accordingly that application is also dismissed.