United Kingdom Employment Appeal Tribunal

MR JUSTICE NELSON:

This is an appeal against the decision of the Employment Tribunal sitting in Nottingham dismissing the Appellant's claim that she was a disabled person within the meaning of section 1 of the Disability Discrimination Act 1995.

1. It is contended by the Appellant that the Employment Tribunal failed to evaluate properly the evidence before them as to the extent of the Appellant's mental impairment, in particular by misapplying the Guidance on matters to be taken into account in determining questions relating to the definition of disability issued by the Secretary of State for Education and Employment on 25 July 1996, and by focusing on activities which she could do rather than those which she could not or could only do with difficulty. Furthermore they found that notwithstanding the problems she was facing she still was still managing to cope, without taking account of the fact that the coping strategy was not always successful and had indeed broken down. It is also alleged that the Tribunal placed too much weight on the performance of the Appellant at the hearing, and that they erred in law in the manner in which they considered the issue of medication.
2. As a consequence of these errors the Tribunal came to a conclusion which the Appellant contends was one which no reasonable Tribunal could have reached.
3. The Respondent submits that the decision was reasonable on the evidence and even if the approach to the Guidance was not entirely correct it is clear that the Tribunal looked at the matter carefully in the round and thereby rectified any error of approach that they had made. On the limited medical evidence available to them their approach to the effects of medication was correct.

The Employment Tribunal decision.

4. It was accepted by the Respondent that the Appellant suffered a mental impairment within the meaning of that term under the Disability Discrimination Act and that impairment was of long term effect. The only issue for the Tribunal to decide was therefore whether the impairment had a substantial adverse effect on the Appellant's ability to carry out normal day to day activities.
5. The Tribunal accepted the Appellant's evidence without qualification. There was also before them an agreed medical report from the Appellant's GP, Dr Grenville, dated 23rd March 1999. No evidence was called on behalf of the Respondent.
6. The Tribunal found that the Appellant had clinical depression which they described in paragraph 12 of their findings as manifesting itself in that "she is often weepy and finds it difficult to cope with stressful situations and difficult to concentrate for long periods. She has difficulty with relationships. She is easily tired and sleeps for long periods. She suffers some memory loss. Her lack of ability to concentrate and tiredness have an inevitable 'knock on' physical effect".
7. She had been on anti-depressants continuously since 1995 and started suffering from panic attacks after she was raped in November 1997. She dealt with the panic attacks by centring her life on her work but needed to put in extra hours to achieve what she believed was 95% efficiency but she still made some errors and found she had to leave her desk from time to time.
8. She was however unable to sustain her work as a claims adviser, involving the checking of claims for funding, advising claimants and putting information on to computers. She ceased to work on the 4th March 1998; she was signed off the next day and has not been able to return to work since. She had not previously had to take any significant time off work.
9. The Tribunal found that the Appellant's depression had been a lot more severe than previously since November 1997 and she was put on a higher dose of anti-depressants by May or June of 1998. Details of her medication on Amitriptyline which were provided to us indicate that the dosage increased from 50 mgs to 100 mgs in August 1998, some weeks after the sudden death of her brother. The dosage increased to 150 mgs in October/November 1998 and was then reduced to 100 mgs in February/March 1999. It was thought that these details were in fact before the Tribunal though they may have only been available to them. The Appellant had also received counselling which had done some good.
10. The Appellant thought that her problem had built up from November 1997 to March 1998 and then levelled off and was slowly improving but she could not do by the time of the hearing what she was doing before she left work. She was sleeping for 10 hours each night and was shattered after 2 or 3 days of normal living. She lost concentration after a while and could not remember everything that happened on a day to day basis. Memory retention had been effected so that she could remember important things but her brain ignored lesser things. She said that she would not be able to remember everything that happened during the hearing.
11. The Appellant was unrepresented before the Employment Tribunal. No doubt mindful of the fact that an impairment, whether physical or mental, is to be taken to effect the ability of the person concerned to carry out normal day to day activities only if it effects one of the headings set out in schedule 1 para. 4(1) of the Act, the Tribunal sought to question the Appellant in relation to those headings.

They chose to do so by reference to the Guidance C14 to C21. They took the Appellant through each heading of the Guidance and on occasions through one or more of the examples which are there set out of matters which it would be reasonable to regard as having substantial adverse effect. Thus in paragraph 7 of their decision the Tribunal noted under the heading Mobility that the Appellant tired very easily, but was able to walk into Derby's town centre about 1 mile away, and around the town centre but got tired in doing so. She was often able to walk back home. She could only drive short distances or longer distances by taking breaks. Under Manual Dexterity it was noted that the Appellant gets "so tired that her co-ordination goes". It was then noted, plainly by reference to the examples given in the Guidance that she had no difficulty with a knife and fork and could thread a needle but her concentration would go if she were to sew. Under the heading Physical co-ordination the Tribunal noted that "whilst she might trip over pavement edges, she could eat and drink and catch a ball". The Appellant's ability or inability to catch a ball was not on the face of it relevant to her condition and appears to have been selected from the examples under C16 as a contrast or counterpoint to her inability to negotiate pavement edges safely. It appears as if the Tribunal was assessing the Appellant's overall physical co-ordination by balancing out examples of what she could not do against what she said she could do in order to come to an assessment. Continence was stated not to be an issue and was clearly wholly irrelevant to this case .Again under the heading Ability to lift, carry or otherwise move every day objects the Tribunal noted that the Appellant got tired easily. It was then stated that she could push a sofa but not lift and was not able to carry things for the distance she would expect to. Once again the Tribunal appeared to have been using the examples from the Guidance as a gauge for assessing the Appellant's ability, contrasting an ability within an inability even though neither were on the face of it relevant to her condition of clinical depression.

12. It was noted under the heading Speech, hearing or eyesight that when the Appellant was tired things started to blur but that she had no problem with speech or hearing. Under the heading Memory or ability to concentrate, learn or understand the Tribunal in addition to referring to their earlier findings in relation to loss of concentration and retention, recorded the fact that the Appellant could remember her children's and work colleagues names and could write a cheque. She would have to keep re-reading a recipe but could do a section at a time. These are again taken from the examples in the Guidance under C20.
13. When considering the heading Perception of the risk of physical danger the Tribunal stated that the Appellant knew that to step in front of a car was dangerous but might find herself stepping out and having to step back.
14. At paragraph 12 of their decision the Tribunal gave an overview of the Appellant's clinical depression relating to her weepiness, inability to cope with stress, difficulty in concentration and relationships, tiredness, memory loss and the knock on physical effects of her lack of ability to concentrate and her tiredness. They then stated "on the other hand we were impressed with her performance before us when she was alert and clear in her presentation although, of course, we do not know the extent to which this will affect her during the following days."
15. The Tribunal expressed their decision on the issue before them as follows:-

"14 Turning now to headings C14 to C21 of the Guidance we remind ourselves that these are only illustrative and not exhaustive. Having said that, we agree with Mrs Bennison that, taking each one separately, we are satisfied that none of them indicate to us that the Applicant has suffered a substantial adverse effect on her ability to carry out normal day to day activities.

15 Furthermore looking at them collectively and also standing back and looking at the evidence as a whole, we have no difficulty in reaching the same conclusions."

16. When considering the effect of medication the Tribunal said at paragraph 18, "all we do have is the Applicant's own evidence of the extent of the deterioration of her condition after November 1997 and draw the conclusion from that that, without medication, her condition would be at least as bad as it was at that time." They then continued in paragraph 19 "in essence we are looking at her evidence in paragraph 6(3) and the message we get is that, not withstanding the problems she was facing, she was still managing to cope."
17. They therefore concluded that the Appellant was not a disabled person within the meaning of section 1 of the Act and dismissed her application.

The use of the Guidance.

18. Section 3(3) of the Act provides that a tribunal shall take into account any guidance which appears to it to be relevant. Paragraph 1 of part 1 of the Guidance issued for disability cases states:-

"In the vast majority of cases there is unlikely to be any doubt whether or not a person has or has had a disability, but this guidance should prove helpful in cases where it is not clear."

19. Mr Justice Morison said in the case of Vicary -v- British Telecommunications Plc (1999) IRLR 680 the Guidance therefore will only be of assistance in what he described as marginal cases. In a clear case it would be wrong to search the Guidance and use what is said as some kind of extra hurdle over which the Applicant must jump. (Goodwin -v- The Patent Office (1999) IRLR 4)
20. As Mr Justice Morison also said in the case of Goodwin it is important to bear in mind that the focus of attention required by the Act is on the things that the Applicant either cannot do or can only do with difficulty rather than on the things that the person can do.
21. It is not disputed that it was appropriate in this particular case for the Tribunal to refer to the Guidance, but the Appellant submits that the Tribunal misapplied the Guidance by in effect using it as a check list and slavishly following it. Instead of concentrating on what the Appellant could not do or could only do with difficulty the Tribunal went through every heading in the Guidance C14 to C21 balancing out what the Appellant could and what she could not do. In the course of this exercise they took into account matters such as the Appellant's ability to catch a ball, which was not relevant in any way to offset against the degree of disability she suffered from tripping over the pavement edge. Nevertheless it appears from their findings that that is what they did, even though it was an inappropriate juxtaposition.
22. Furthermore in paragraph 14 of their decision they treated the headings of the Guidance as "only illustrative and not exhaustive" whereas the headings are exhaustive it is the examples which are only illustrative. (C9) This suggests that the Tribunal not only misapplied the Guidance but did not fully understand it.
23. The Respondent however submits that it was important for the Tribunal to explore the unrepresented Applicant's evidence with her, and the Guidance was the best method of doing so. They were not seeking to set additional obstacles but merely seeking to elicit her evidence. In the course of doing so, by giving examples for the witness to consider in her evidence, elements may be covered which are not strictly relevant to the case. That however is a consequence of seeking to assist the witness, not of misapplying the Guidance. The descriptions of the headings being illustrative when they should have been described as exhaustive did no more than poorly express a perfectly proper approach.
24. This approach, the Respondent submits, can be seen to be correct by virtue of the fact that the Tribunal looked at the headings, reminded themselves that the Guidance was only illustrative and then looked at the matter in the round, considering the evidence as a whole. By taking this last step, any approach which they had made which was incorrect was in effect rectified.
25. We are however satisfied that the Tribunal did rely too heavily upon the Guidelines in this case and hence erred in their approach to dealing with the matter. They failed to focus on the things which the Appellant could not do or those which she could do with difficulty rather than on the things she could do. As a consequence they failed to evaluate her evidence properly. They took examples from the Guidance of what the Appellant could do such as being able to eat and drink and catch a ball and then weighed that in the balance against what she could not do e.g. negotiate pavement edges safely. This was inappropriate; her ability to catch a ball did not diminish her inability to negotiate pavement edges safely. Her ability to write a cheque or remember her children's or work colleagues names did not diminish her loss of concentration and day to day memory retention, nor her difficulties in using a recipe without having to keep rereading it with the consequence that she could only do a section at a time.
26. Whilst it is essential that a Tribunal considers matters in the round and makes an overall assessment of whether the adverse effect of an impairment on an activity or a capacity is substantial,'it has to bear in mind that it must concentrate on what the Applicant cannot do or can only do with difficulty rather than on the things that they can do. This focus of the Act avoids the danger of a Tribunal concluding that as there are still many things that an applicant can do the adverse effect cannot be substantial.
27. The Tribunal in this case looked at each heading of the Guidance separately and then all the headings collectively as can be seen from paragraphs 14 and 15. We are satisfied that they then assessed the evidence as a whole through their interpretation and application of the Guidance, concentrating improperly on the things which the Appellant could still do. It is particularly important that a Tribunal considering a case of mental impairment takes into account the matters set out in paragraphs C6 and C7 of the Guidance. The Tribunal made reference to C6 but only in the context of the submission by the Respondent that they doubted whether the additional tiredness suffered by the Applicant was substantial. C6 notes that an impairment may also indirectly effect a person in the capacities set out under the Act and under C4 of the Guidance and states that this should be taken into account when assessing whether the impairment falls within the definition. For example "the impairment might make the activity more than usually fatiguing so that the person might not be able to repeat the task over a sustained period of time." C7 states "where a person has a mental illness such as depression account should be taken of whether, although that person has the physical ability to perform a task, he or she is, in practice, unable to sustain any activity over a reasonable period."
28. The effects of tiredness were noted by the Tribunal under the headings mobility, manual dexterity, ability to lift or carry and eyesight. The finding that the Appellant was easily tired, slept for long periods and was shattered after 2 or 3 days of normal living is also relevant here and clearly suggests an inability to sustain an activity over a reasonable period.
29. We do not consider that the Tribunal took proper account of the over arching effects of tiredness on the Appellant's capacities. Had they done so and focused on those things which she could not do or only do with difficulty they would have appreciated on their own findings that her walking was restricted, as was her driving even short distances, her co-ordination affected so that she might trip, her ability to lift or carry affected and her eyesight affected by becoming blurred. When the effects on concentration and memory are also taken into account, with slowness in following a recipe and difficulty in an activity such as sewing, together with the risk of stepping out into a road at a time of danger and having to step back, it is difficult to see how the Tribunal were able to conclude on the evidence which they themselves found that there was not a substantial adverse effect on the Appellant's ability to carry out normal day to day activities when on medication. We conclude that the Tribunal came to the wrong conclusion on the facts before them because they misdirected themselves as to the manner in which the Guidance should be applied and as to the need to focus on what the Appellant could not do or could only do with difficulty rather than on what she could do.

The Appellant's demeanour.

30. A Tribunal is entitled to take into account how a Claimant presents her claim to them during the course of a hearing but must recognise, as was said in Goodwin, that a person's capabilities in the relatively strange adversial environment of a hearing cannot readily be regarded as an entirely reliable guide to the level of ability to perform normal day to day activities. The Tribunal did not recognise this limitation even though they were plainly aware that the effort might have caused the Appellant to be affected during the following days.

Medical treatment.

31. The Tribunal noted in paragraph 17 that they had no evidence on what effects there would have been on the Appellant's condition but for the medication. The GP's report did not deal with the matter directly and no other medical evidence was available. The Tribunal relied upon the Appellant's evidence alone as to the extent of the deterioration of her condition after November 1997 in order to conclude that her condition, without medication, "would be as least as bad as it was at that time".
32. Both parties accept that the lack of evidence on this matter created difficulties for the Tribunal. The Appellant submitted that there was sufficient evidence for the Tribunal to find what the deduced effects were but argued that they had come to the wrong conclusion by failing to assess the matter as at the date of dismissal in October 1998 and by failing to infer that the adverse effects would have been substantially increased if she had not been on medication. The Respondent submitted that the Tribunal did the best that they could in unsatisfactory circumstances to deal with the matter, that the burden was on the Applicant and that the date of the act complained of was the time when the matter should be assessed.
33. We agree that the material time for assessing the effects on the Applicant's abilities whilst on medication is October 1998, the date of the act complained of, namely the dismissal. The Tribunal should however have looked at the evidence before them that the Appellant had been on anti-depressant medication on a continuous basis since 1995, that her condition had deteriorated in November 1997, that her medication had increased in about August 1998 after the death of her brother, and that it had increased yet again in about October 1998 at the time of her dismissal. It is not however clear that the dosage levels were before the Tribunal which, if so, would have rendered their task even more difficult and given rise to the question as to whether they should, of their own volition have adjourned the hearing so that the Appellant could seek a further report on the matter from her GP or secure his attendance at Court as a witness.
34. We conclude on the basis of the information before us that at the material time the Appellant's condition would probably have been worse without medication and physiotherapy than it was on medication and physiotherapy and we draw this inference upon the evidence of the GP that the Appellant was on continuous anti-depressant medication from 1995 and that the dosage had to increase in August 1998 and in October/November 1998.
35. We are conscious of the fact that the Tribunal may not have had the evidence of dosage before it, but this makes little difference in practice, for in view of the fact that we have found that the effects were substantial even with medication, the deduced effects become considerably less important.

The coping strategy.

36. The Tribunal concluded in paragraph 19 of their findings that:-

"In essence we are looking at her evidence in paragraph 6(3) and the message we get is that, not withstanding the problems she was facing, she was still managing to cope."

37. Paragraph 6(3) refers to the panic attacks and the Appellant's manner of seeking to deal with those by centring her life on her work. The finding at paragraph 19 appears to refer to the Appellant's problems generally rather than just the panic attacks. If this is so it does not refer to the fact that the Appellant was unable to work after March 1998 and in that sense her coping strategy appeared to have failed. A8 of the Guidance recognises that the ability to manage the effects of an impairment may break down so that the effects will sometimes still occur and this possibility must be taken into account when assessing the effects of the impairment.
38. It is difficult to see how the Tribunal could have found that the Appellant was managing to cope with her problems as a whole given her own evidence and that of the medical report. If however the finding related solely to the panic attacks of which the Appellant was no longer complaining of in her evidence, it would make little difference to the overall assessment of the effects of her impairment. Whilst ceasing work did not cause the panic attacks to return, it did not on the Tribunal's own findings enable the Appellant to cope better with her other complaints and their effect upon her. The rest of her condition appeared to have worsened after she left work until February 1999.

Conclusions.

39. We are satisfied that the Tribunal approached this matter incorrectly by focusing on the Guidance and what the Appellant was able to do instead of concentrating upon what she could not do or could only do with difficulty. As a consequence they came to an unreasonable conclusion on the facts in finding that the Appellant was not a disabled person within the meaning of the Act. We are clear that the Appellant's clinical depression amounted to a mental impairment which had a substantial adverse effect on her ability to carry out normal day to day activities. The serious tiredness which overcomes her has an adverse effect on her mobility, manual dexterity and physical co-ordination which is more than minor or trivial. We are satisfied that as a result of her clinical depression with its consequent fatigue she is unable to sustain an activity over a reasonable period and because of the adverse effects of her reduced memory and powers of concentration she has difficulty in dealing with domestic tasks such as reading a recipe in a normal time span.
40. The appeal is therefore allowed. We find that the Applicant was a disabled person within the meaning of the Act at the relevant time. The case is remitted back to a differently constituted Tribunal for a continuation of the hearing. This will avoid either party being left with the feeling that the result is a foregone conclusion however unjustified that feeling might be.