United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS S DREW (of Counsel) Instructed By: Thompsons The McLaren Building 35 Dale End Birmingham B4 7LF


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of a preliminary hearing the appeal of Samantha Morgan in the matter Morgan against Staffordshire University. Today, Ms Drew has appeared for Mrs Morgan.

1. In March 1999 Mrs Morgan lodged an IT1 claiming that she had been constructively dismissed as at 28 December 1998. At an interlocutory hearing on 15 July 1999 she was given leave to add a claim for Disability Discrimination. The University denied that she was disabled.
2. There was a hearing on 9 December 1999 before the Employment Tribunal at Shrewsbury under the chairmanship of Mr D.P. Thompson. Evidence was given only by Mrs Morgan herself. Various doctors' notes were produced as to her mental state before and after 28 December 1998, the date of dismissal. No direct informed expert evidence was given. The Tribunal said:

"13. Both parties submitted extracts from the World Health Organisation's International Classification of Diseases, particularly F40-F48 headed 'Neurotic, stress related and somatoform disorders' and F30-F39 headed 'Mood (affective) disorders, together with definitions of 'impairment' and 'disability' upon the same publication. No explanations or assistance was given by either party in respect of the interpretation of those documents."

Later, they said, in paragraph 18:

"There was just no evidence or assistance from the applicant, or those representing her, to assist the Tribunal in reaching a conclusion that the applicant was suffering from a mental illness which is recognised by a respective [respectable] body of medical opinion. Accordingly, the Tribunal have somewhat reluctantly come to the conclusion that the applicant is not disabled as she did not have a mental impairment within the meaning of the Act."

And they said at the end, in their paragraph 23:

"23. However, because the Tribunal have come to the conclusion that the applicant did not have such impairment, then the applicant's claim under the Disability Discrimination Act 1995 must be dismissed because the Tribunal concluded that the applicant is not disabled within the meaning of the Act."

3. The Tribunal's Decision was sent to the parties on 24 January 2000 and Mrs Morgan lodged a Notice of Appeal on 6 March. The main ground of her appeal, which is then sub-divided, is as follows:

"6. The grounds of appeal are that the Employment Tribunal erred in law, misdirected themselves in law and/or reached a conclusion which on the evidence before them, no reasonable Tribunal would have reached when they held that the Appellant was not a disabled person within the [and then the Act is quoted], in particular when they held, #18, that the Appellant was suffering from a mental impairment because they could not be satisfied that she was suffering from a clinically well-recognised illness."

4. We do not feel that we need to go into the arguments which Ms Drew would have presented to us on whether there is here an arguable error of law or not, because even if there were not there are questions here that seem to us important and which require decision.
5. Thus, first of all, the 1995 Act is still settling down. It is still appropriate, as a function of the EAT, to give guidance as to what is still relatively new territory as yet devoid of authority.
6. Secondly, as we have seen, the Tribunal at several points drew attention to the paucity of the evidence laid in front of them and it may prove useful for the EAT to consider what levels of expert assistance the Employment Tribunals can reasonably expect and require by way of evidence in corresponding cases.
7. Thirdly, it may be useful, too, to focus on the date as at which, or the period over which, the long-term adverse affects described in section 1 (1) of the Act need to be shown and also for that to be considered in the light of section 2, which is marked "Past disabilities". Questions arise such as what is the effect, looking back from the date of the hearing to the effective date of termination in a case where a dismissal is said to be the less favourable treatment, if it can be seen that it would have been decided as at that earlier date that there was a section 1 liability, when, looking at the state as at the date of the hearing, no disability could be discerned? What would be the result in the converse case where, looking to the state of things as at the dismissal, no disability could then have been found but where it can be seen at the date of the hearing there had been one at the date of dismissal?
8. There are several difficulties in this area that arise and, whilst we cannot be sure that this case is doing to lead to any of them, still less all of them, falling for decision, there are questions here that are serious and in a new jurisdiction need the sort of assistance that one gets at an inter partes rather than ex parte hearing. Thus, whilst neither ruling for or against Ms Drew's skeleton argument, we see it appropriate to let the whole Notice of Appeal go to a full hearing. Skeletons should be lodged with the opponent and with the EAT not less than 14 days before the hearing and the parties are to agree relevant extracts from the WHO classification and lodge them with the EAT along with their skeleton arguments, together with any other extracts from learned medical works to which either party intends to rely at the hearing.