United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS KAREN STEYN (of Counsel) Instructed by: The Bar Pro Bono Unit
For the Respondents	MR PHILIP THORNTON (of Counsel) Instructed by: Group Legal Services British Telecommunications Plc Libra House Sunrise Parkway Milton Keynes MK14 6PH


 


MR JUSTICE NELSON: This is an appeal from the decision of the Employment Tribunal sitting at Ashford in Kent dismissing the Appellant's disability discrimination claim on the grounds that he was not disabled within the meaning of section 1(1) of the Disability Discrimination Act 1995.

1. The Appellant is employed by the Respondent as a telephone operator. On the 27th January 1998 he was taking calls when he received a sudden blast of high pitched high volume noise through the left earphone of his headset. He instinctively removed the headset as fast as he could but the acoustic trauma had by then already occurred. He was shaken and upset by this incident and suffered pain and tenderness in his left ear. It was not disputed by the Respondent that as a result of this incident the Appellant suffered a permanent hearing loss, tinnitus, and post traumatic stress disorder. The Tribunal found that the applicant did suffer an impairment both of his hearing and from his post traumatic stress disorder, that the impairment affected his ability to carry out normal day to day activities in one of the respects set out in paragraph 4(1) of Schedule 1 to the Act, that it had an adverse effect, that the adverse effects were long term, but that those adverse effects were not substantial.
2. The Appellant alleges that in reaching their decision the Tribunal erred in law in four respects, firstly in misdirecting themselves as to the expert evidence, secondly in failing to have regard to paragraph 6 of Schedule 1 to the Act by failing to consider the medical treatment the Appellant had been receiving for his post traumatic stress disorder, thirdly in their finding that travelling by Underground and travelling by aeroplane were not day to day activities for the Appellant, and fourthly in failing to take into account the finding of the Medical Appeal Tribunal that the Appellant was suffering from an 18% disablement.

1. The manner in which the Tribunal dealt with the medical evidence.

3. The Appellant put medical reports from Mr Nigel Padgham, a consultant ENT surgeon, and Dr Graham Rehling, a consultant psychiatrist and psychotherapist, before the Employment Tribunal. The Respondent called Dr Diane Macaulay of the Respondent's occupational health service, who was also the regional medical officer. The Appellant received Dr Macaulay's first report some two weeks before the Tribunal hearing, and her additional report some four days before the hearing. The main report not only concluded that Mr Abadeh was not disabled within the meaning of the Act, but also failed to deal with various of the complaints which Mr Abadeh said he had made to Dr Macaulay. The additional report stated that Mr Abadeh had not in fact informed Dr Macaulay about his problems with driving or using public transport or of his impairment in memory and concentration. The Appellant nevertheless decided, together with his union representative, not to seek an adjournment of the hearing but to proceed on the basis of the written medical reports available to him. The Employment Tribunal thus only heard oral evidence from one medical witness, namely Dr Macaulay.
4. The absence of any oral evidence from the Defendant's doctors created a disadvantage both for the Appellant and for the Tribunal in dealing with the matter but the Appellant made the decision not to seek to secure the attendance of his doctors, and cannot now complain if the material before the Tribunal was less full than it should have been. It was entirely proper for the Tribunal to deal with the matter on the evidence presented to it, though it was incumbent upon them to consider and evaluate the contents of the written reports with care.
5. The Employment Tribunal found Dr Macaulay to be an impressive professional witness. They preferred not only her medical opinion to that expressed by the Appellant's doctors in their written reports but also preferred her evidence to that of the Appellant and his wife as to what he had told her when he was seen and examined by her.
6. The essence of the Appellant's contention is that the Tribunal relied upon Dr Macaulay's evidence to such an extent that they allowed her to usurp their own function in determining whether the Appellant's ability to perform normal day to day activities had been substantially adversely affected under section 1(1) of the Act. The Respondent denied that there was any delegation of function; the Tribunal clearly found Dr Macaulay to be an excellent witness but a proper reading of their findings shows that they weighed all her evidence carefully before deciding the matter for themselves.
7. The matters relied upon by the Appellant are as follows:-

The Employment Tribunal found in paragraph 6 of their decision that:

"Dr Macaulay was an impressive professional witness, who is accustomed to dealing with not only people who have accidents and who are bringing claims for personal injury (which, understandably, is the case of Mr Abadeh), but she has become experienced in dealing with problems under the Disability Discrimination Act, and her medical reports and evidence were very much directed to the questions posed by the Act, in particular section 1 (1) and Schedule 1 of the Act."

8. In paragraph 5c and paragraph 6 of her main report Dr Macaulay stated that she could find nothing to suggest that the post traumatic stress from which Mr Abadeh suffered was severe enough to have a substantial impact on his ability to carry out any normal day to day activities, and came to the same conclusion in relation to the hearing loss and tinnitus, either on its own or when combined with the other two conditions. She concluded that she did not consider Mr Abadeh to be disabled within the meaning of the Act.
9. There is no transcript of evidence before us and it has therefore to be taken that Dr Macaulay's evidence was consistent with the opinions she expressed in her reports. It is not the task of the medical expert to tell the Tribunal whether the impairments were or were not substantial. That is the question which the Tribunal itself has to answer. The medical report should deal with the doctor's diagnosis of the impairments, the doctor's observation of the applicant carrying out day to day activities and the ease with which he was able to perform those functions, together with any relevant opinion as to prognosis and the effect of medication. (Vicary -v- British Telecommunications plc 1999 IRLR 680)
10. The case of Vicary dealt not only with the same Respondent, British Telecommunications plc, but also with the same doctor, Dr Macaulay and, the Appellant submits, the comments made by Mr Justice Morison are entirely apt to this case. We for our part are satisfied that Dr Macaulay's report in paragraphs 5c and 6 expressed opinions as to the application of the Act which were matters for the Court rather than for her. The question still remains however, as the Respondent's submit, as to whether or not the Tribunal nevertheless decided the matter for themselves.
11. The undue extent to which the Tribunal relied upon Dr Macaulay's opinions as to the questions to be answered under the Act is, the Appellant submits, demonstrated by the illustrations set out in paragraph 7.4. of the amended grounds of appeal.

Thus the Tribunal stated in paragraph 6 that they did not have the advantage of the help of Dr Padgham, or Dr Rehling in relating their reports "to the problems of the Act". In paragraph 8(10) of their decision the Employment Tribunal said that Dr Rehling's report "does not advert in detail to the requirements of the Disability Discrimination Act, although the report is said to be for the purposes of the Act." In fact Dr Rehling in paragraph 4.5 of his report said that "the impairments of memory and concentration have grossly limited his capacity to deal effectively with ordinary domestic tasks" and was in fact there expressing his medical opinion for the assistance of the Tribunal in their task, albeit not expressly using the language of the Act itself. The fact that the Tribunal appears to have failed to recognise that this evidence gave them direct assistance in considering the problems raised under the Act, suggests that they were unduly persuaded by Dr Macaulay's assessment of whether or not the impairments were "substantial" under the Act. Even though neither Dr Padgham or Dr Rehling were called to give evidence, and thus not available for cross-examination as Dr Macaulay was, it is clear from Dr Rehling's report that he was giving appropriate and relevant assistance to the Tribunal to assist them in their decision under the Act.

12. In considering the conflict of evidence between Mr and Mrs Abadeh and Dr Macaulay the Employment Tribunal said at paragraph 7:-

"we saw no reason not to accept Dr Macaulay's evidence, which seemed to us to give not only an expert, but a thoroughly sensible assessment of the evidence. Where her evidence conflicts with that of Mr and Mrs Abadeh, we prefer her evidence."

13. Although the words "seemed to us" suggest that the Tribunal were giving their own consideration to the matter, their reference to Dr Macaulay's "assessment of the evidence" suggests that they were again relying upon her conclusions on the evidence rather than coming to their own. The words "no reason not to accept Dr Macaulay's evidence" is, the Appellant submits, looking at the matter the wrong way round, and again suggests undue reliance upon Dr Macaulay's evidence and, her assessment of the evidence.
14. The Employment Tribunal when preferring Dr Macaulay's evidence to that of Mr and Mrs Abadeh, made a specific finding in paragraph 8(13) that Mr Abadeh did not tell Dr Macaulay of his loss of memory or inability to concentrate, and that if he had she would have arranged cognitive tests of these conditions. (Paragraph 8(14).) Although the Employment Tribunal referred to the limited entries in the Appellant's chronicle and his correspondence to loss of concentration or memory loss they make no reference to the fact that the Appellant was being treated for post traumatic disorder, including impairment of concentration and short term memory, in April 1999, that is, at the same time as Dr Macaulay saw and examined the Appellant for the third time. Dr Rehling refers to this treatment in paragraph 3.3.1 of his report and of the gradual improvement it had created in Mr Abadeh's symptoms in paragraph 4.4 of his report.
15. There was no dispute before us that such treatment had been taking place yet the existence of such treatment was not elicited by Dr Macaulay from the Appellant when she saw him in April 1999. The Employment Tribunal do not consider the fact that the Appellant was complaining of impairment of memory and concentration to other doctors as part of his post traumatic stress disorder, nor do they consider in their decision the fact that he was receiving treatment for post traumatic stress disorder in April 1999 and that by then this was already having a beneficial effect upon his condition. These matters are clearly relevant to the Tribunal's assessment of the evidence of Dr Macaulay, and that of Mr and Mrs Abadeh and its significance, yet do not appear to have been considered.
16. The matter upon which the Appellant places most reliance is the Employment Tribunal's decision as set out in paragraph 8(12) where they stated:-

"in the absence of oral evidence from Dr Rehling to expand on his report, we prefer the evidence of Dr Macaulay that, although the post traumatic stress disorder amounts to a mental impairment, it does not have substantial adverse affect on Mr Abadeh's ability to carry out normal day to day activities."

17. The Respondent conceded that this finding could have been better worded but submitted that it should be looked at in the context of the overall decision. The findings of a Tribunal should be looked at "broadly". If it appeared that they had applied the right test and that their conclusion was broadly reasonable it should not be interfered with. (Hollister -v- NFU).
18. Although on the face of it paragraph 8(12) suggests that the Tribunal accepted Dr Macaulay's assessment of the question they themselves had to answer, it is submitted that when looked at in the round the decision showed that this was not the case and that there had been no error of law. The Tribunal made their own observations of the Appellant both in relation to his concentration and hearing in paragraphs 8(5) and 8(6) and having weighed the evidence formed the view that Dr Macaulay's evidence coincided with their own findings on the issues. It should be noted that when assessing the Appellant's own evidence before them, the Tribunal did not make any allowance for the fact that a person's capabilities in the relatively strange adversarial environment are not an entirely reliable guide to the level of ability to perform normal day to day activities, as Mr Justice Morison suggested in the case of Goodwin.
19. The Appellant however submits that taken as a whole and as exemplified by paragraph 8(12) it is manifest that the Employment Tribunal effectively accepted Dr Macaulay's assessment of "substantial" adverse effect rather than arriving at its own assessment of whether the impairment was or was not substantial.
20. We have considered each side's submissions with care. We recognise that findings of fact are pre-eminently matters for the Tribunal, and that their findings should be looked at not in a critical legalistic fashion but in the round to see if their conclusions can be described as broadly reasonable.
21. We are satisfied however, that the Employment Tribunal did misdirect itself in its treatment of the medical evidence. It is our clear view that the Tribunal were over influenced by Dr Macaulay's opinion as to whether or not the impairments were substantial under the Act and in effect adopted her assessment instead of making their own of that issue. As the Employment Appeal Tribunal concluded in the case of Vicary we are satisfied that the Tribunal misdirected itself in law in the way it dealt with the expert evidence.
22. Where there are substantial issues of fact which have to be resolved, both on the medical evidence and the evidence of the Appellant and his witnesses, it is not possible for this Tribunal to substitute its own findings on the issue of disability. This case must be remitted back to the Employment Tribunal for rehearing.
23. The Respondent sought to persuade us that with suitable directions from this Court it would be appropriate for the Employment Tribunal which heard the matter originally to hear it again. This would be a substantial saving of costs and of time. The Appellant submits that there would be a natural tendency on the part of the Employment Tribunal which has already heard the matter for it to confirm its own judgment and that the only fair relief to grant the Appellant would be a rehearing by a different Tribunal.
24. We are satisfied that the interests of justice require that a fresh tribunal hears this case. It is important that a tribunal which has not already formed a clear preference on the evidence and played such strong reliance on one medical witness, should conduct the rehearing. This will ensure that the matter is dealt with entirely fresh. It is to be hoped that the Tribunal which now hears the matter will have the benefit of oral evidence from all relevant medical witnesses.
25. We have been invited by the parties to give guidance to the Tribunal conducting the rehearing on the issues which are raised in the additional grounds of appeal. We propose to do so.

2. The effect of continuing medical treatment.

26. The Employment Tribunal make no reference to the psychotherapeutic treatment which the Appellant was receiving nor to the Appellant's recent submission that this treatment, as recorded in paragraph 3.3.1 of Dr Rehling's report should be taken into account by the Tribunal, and consideration also given to the guidance under paragraphs A11 and A12 dealing with treatment being disregarded for the purposes of assessing disability.
27. It is submitted by the Appellant that the consequent failure of the Employment Tribunal to consider what effect there would have been on his disability if he had not been receiving treatment, amounted to an error in law. The Respondent submits that no error was made as the Appellant's condition was, on the evidence of Dr Rehling and Dr Padgham improving and in such circumstances the medical treatment does not have to be disregarded or discounted.
28. Paragraph 6 of Schedule 1 to the Act states:-

"(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.."

29. In the case of Goodwin Mr Justice Morison when dealing with paragraph 6 of Schedule 1 said:-

"The Tribunal will wish to examine how the applicant's abilities had actually been effected at the material time, whilst on medication, and then to address their minds to the difficult question as to the effects which they think there would have been but for the medication: the deduced effects. The question is then whether the actual and deduced effects on the applicant's abilities to carry out normal day to day activities is clearly more than trivial."

30. Where treatment has ceased the effects of that treatment should be taken into account in order to assess the disability. This is the case because paragraph 6 of Schedule 1 applies only to continuing medical treatment i.e. to measures that "are being taken" and not to concluded treatment where the effects of such treatment may be more readily ascertained.
31. Where treatment is continuing it may be having the effect of masking or ameliorating a disability so that it does not have a substantial adverse effect. If the final outcome of such treatment cannot be determined or if it is known that removal of the medical treatment would result in either a relapse or a worsened condition, the medical treatment must be disregarded under paragraph 6 of Schedule 1. Where however the medical evidence satisfies the Tribunal that the effect of the continuing medical treatment is to create a permanent improvement rather than a temporary improvement, such permanent improvement should be taken into account as measures are no longer needed to treat or correct it once the permanent improvement has been established.
32. The situation can be illustrated by two examples; first where physiotherapy has resulted in an improvement in movement which will facilitate ordinary walking without the use of a stick or a crutch but where further physiotherapy is still carrying on, the permanent improvement already achieved will be taken into account in assessing the disability, whereas such residual stiffness as still requires continuing treatment, the outcome of which is not known, must be taken into account in assessing the disability without regard to that continuing treatment. If however the accepted prognosis is that such stiffness, albeit still seriously disabling, will be resolved with further physiotherapy, such recovery can be taken into account. Second, where depression is being treated by medication the final effects of which are not known or where there is a substantial risk of a relapse when the medication ceases the effects of the medication are to be ignored. Thus, when dealing with the effects of treatment on recurring effects the Guidance at B6 states:-

"If medical or other treatment is likely to cure an impairment, so that recurrence of its effects would then be unlikely even if there were no further treatment, this should be taken into consideration when looking at the likelihood of recurrence of those effects. However, as section A describes, if the treatment simply delays or prevents a recurrence, and a recurrence would be likely if the treatment stopped, then the treatment is to be ignored and the effect is to be regarded as likely to recur."

33. On the facts of the present case it is clear that the psychotherapeutic treatment which the Appellant has been receiving has resulted in an improvement in his post traumatic stress disorder. This is clear from paragraphs 3.3.1 and 4.4 of the report of Dr Rehling as well the first page of Dr Padgham's report of the 6th April 1999. It is not however clear on the medical evidence at present available to the Court as to whether this improvement is likely to be permanent or only temporary and likely to return once the treatment has ceased. The Tribunal rehearing the matter must therefore assess the medical evidence as it then stands; if an improvement in the condition has been made permanent by the treatment then that improvement is taken into account as part of the assessment of disability as it no longer needs measures such as medical treatment in order to treat it or correct it. Where the evidence only establishes however that the medication has resulted in a temporary or uncertain improvement, the effects of that medication are to be disregarded in assessing the level of disability.
34. In failing to deal with the medical treatment received by the Appellant at all, the Employment Tribunal misdirected itself in law.

3. Normal day to day activities.

35. The Employment Tribunal found that as Mr Abadeh did not live or work in London travelling by Underground was not a day to day activity for him (paragraph 10(22)) and, because his work does not involve having to travel by aeroplane, nor is flying. (Paragraph 10(24)).
36. The Respondent concedes that the question of what is a normal day to day activity must be addressed without regard to whether it is normal to the particular applicant. C2 of the Guidance states:-

"The term 'normal day to day activities' is not intended to include activities which are normal only for a particular person or group of people. Therefore in deciding whether an activity is a 'normal day to day activity' account should be taken of how far it is normal for most people and carried out by most people on a daily or frequent and fairly regular basis."

37. In view of the terms of this Guidance under C2, the Respondent's concession is plainly correctly made. It is however submitted that whilst the Tribunal's approach may well have been wrong they manifestly came to the right answer because most people in England, Wales and Scotland do use either the Underground or aeroplanes on a daily or frequent and fairly regular basis.
38. The Respondent's argument therefore envisage an examination of each individual form of transport in order to see whether it was one which was carried out by most people on a daily or frequent or fairly regular basis. We cannot accept this contention. As Mr Justice Morison said again in the case of Goodwin, what is a day to day activity is best left unspecified; easily recognised but defined with difficulty.
39. In our judgment the matter should be considered not by reference to individual forms of transport but by looking at transport as a whole. Travelling by car or public transport is a normal day to day activity for most people and carried out by them on a daily or frequent and fairly regular basis.
40. The Guidance at C14 supports this interpretation referring as it does to "using a normal means of transport" and, giving as an example of an impairment having a substantial adverse effect on mobility as being an "inability to use one or more forms of public transport".
41. The Tribunal erred in law in finding that travelling by Underground or aeroplane was not a normal day to day activity within the meaning of the Act. They should have found that both these, being normal means of transport, were normal day to day activities and then gone on to consider whether on the facts of this individual case Mr Abadeh's inability to use such forms of public transport amounted to an impairment which had a substantial and long term adverse effect.
42. As the Guidance under C14 envisages, an inability to use one or more forms of public transport may be regarded as having a substantial adverse effect but whether it does or not will depend upon the facts of the individual case. For someone who never uses the Underground it is difficult to see how any potential inability to use that form of public transport could be regarded as having a substantial adverse effect upon him. The Tribunal rehearing the case will have to consider Mr Abadeh's evidence as to the extent to which his mobility is affected in the use of the various different forms of transport available to him.

4. Failure to take into account the Medical Appeal Tribunal assessment.

43. The Employment Tribunal noted at paragraph 8(25) that:-

"Mr Abadeh has been assessed by the Medical Appeal Tribunal as suffering from an 18% disablement for the period 12 May 1998 to 11 May 2000, the assessment being provisional."

44. They also noted in paragraph 11 that the Respondent had submitted to them that that assessment was made only to determine whether the Appellant was entitled to receive Industrial Disablement benefit and was not relevant to the tests under the Disability Discrimination Act.
45. The Employment Tribunal made no further reference to the Medical Appeal Tribunal's decision, not stating whether they had taken it into account or not.
46. The Appellant submits that this failure amounts to an error of law whereas the Respondent submits that it is implicit in paragraph 11 of the Tribunal's decision that they had found the Respondent's submission persuasive and decided to attach little weight to the Medical Appeal Tribunal assessment percentage, which they were quite entitled to do.
47. The Medical Appeal Tribunal assessment was apportioned as to 8% in respect of the hearing loss and 10% in respect of the tinnitus and post traumatic stress disorder, stating that whilst the hearing loss was likely to be permanent the other clinical disabilities might well improve with treatment.
48. This was clearly relevant evidence for the Employment Tribunal to take into account though the weight they attached to it would be a matter for them. They were not entitled, as the Respondent then submitted, to regard it as wholly irrelevant because it was not directed to the questions posed under the Disability Discrimination Act.
49. It is not possible from the terms of the Tribunal's decision to ascertain whether they found the Medical Appeal Tribunal's assessment irrelevant or simply of little weight. They should have taken it into account and made it clear that they had done so and their failure so to act amounts to an error in law. The Tribunal rehearing the matter should consider the Medical Appeal Tribunal's decision as being part of the evidence before them on the issue of disability.
50. We therefore allow the appeal and remit the case to a differently constituted Tribunal for a full rehearing.