United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR BARRY MORGAN Lay Representative
For the Respondent	MR THOMAS KIBLING (Of Counsel) Instructed by Messrs Martineau Johnson Solicitors St Phillips House St Phillips Place Birmingham B3 2PP


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us an appeal from the Employment Tribunal at Shrewsbury under the Chairmanship of Mr D.P. Thompson. The Tribunal held that the Applicant below, Mrs Samantha Morgan, was not disabled within the meaning of section 1 of the Disability Discrimination Act 1995. Whilst others of the necessary components of disability within that Act ("the DDA") were proven, the Tribunal, albeit with some reluctance, concluded that Mrs Morgan did not have a mental impairment, the only impairment she was claiming to have. Mrs Morgan appeals.
2. On 22nd March 1999 Mrs Morgan had lodged an IT1 identifying her complaint as "Constructive Dismissal". She had been employed by the Respondent in the catering facility. She had been assaulted, whilst at work, by her female supervisor but had later been offered alternative jobs within the University's employ but which were such that the employer could not guarantee that she would not again encounter that supervisor, who continued to work for the University. She accepted none of the alternatives offered and resigned. She said:-

"I consider that my employer forced me to this position by its failure to recognise, in dealing with my Supervisor, the mental effect of her assault on me and the totally unreasonable expectation that I could continue to work for her."

Although her IT1 mentioned the stress and anxiety which the assault had caused her and her going off sick on that account, she had for a time returned to work before resigning. She identified a Senior Regional Officer of her Union as representing her. Her IT1 does not mention any disability or the DDA.

3. On 7th April 1999 the University lodged its IT3. Mrs Morgan, some time after the assault, had been examined by the University's Occupational Physician. He had reported that he could not see Mrs Morgan being able to work alongside the Supervisor (or with the colleagues, 7 in all, who had supported that Supervisor by writing a letter of support for her during her disciplinary process). He had suggested that Mrs Morgan should be given a rôle in which she would not come into contact with any of those people. Hence the University offered alternative jobs to Mrs Morgan, but none had been accepted by her. The University averred that it had taken all reasonable steps to meet the situation and that there was accordingly no breach of any express or implied term of contract which could amount to justification for Mrs Morgan's regarding herself as dismissed on account of the University's breach. The IT3 did not mention disability or the DDA.
4. By May 1999 Solicitors had taken over conduct of Ms Morgan's case and on 8^th June  1999 they wrote to the Tribunal indicating in words the amendment which they wished to make to Mrs Morgan's claim, they having earlier raised the question of amendment, as it would seem, only generally. The amendment sought, however, was remarkably unspecific. It was to insert as a head of complaint "Discrimination contrary to the Disability Discrimination Act" and, in amplification, a paragraph as follows:-

"I also believe that my employer failed to make reasonable adjustments to my working conditions contrary to [section 6 of the DDA], in that they failed to accept my request to be transferred from my work place and/or failed to adjust my working arrangements so as to enable me to carry out my employment, contrary to the provisions of the Act."

5. On 15th July 1999, at a first preliminary hearing, the Employment Tribunal gave leave to Mrs Morgan to incorporate a claim under the DDA within her IT1. However, although the University's representative at the hearing indicated that the DDA claim would be resisted, no more explicit form of words was then put to the Tribunal as the proposed amendment than had appeared in Mrs Morgan's Solicitors' letter. No one would wish Employment Tribunals to encumber themselves with unnecessary formality but it is difficult to resist the thought that had Mrs Morgan's advisers been required to spell out in writing exactly what disability she was claiming to have and also, perhaps, when it could be expected to have come to the University's attention that adjustments were needed on account of that disability, that would have focused the attention of her advisers on what evidence they would need to produce to substantiate the claim against the opposition which they were told the DDA claim would meet. Alternatively, a requirement that Mrs Morgan should specify her disability might have led to a recognition that she would not be able to do so and might, in turn, have provoked an abandonment or compromise of the DDA issues which had been added by the amendment. As it was, the Employment Tribunal at their first preliminary hearing accepted from Mrs Morgan's advisers that the amendment she was permitted would be clarified by way of Further and Better Particulars, though we have seen no order on the point, nor can any time limit for their service be seen to have been prescribed.
6. On 23rd August 1999 the University wrote to the Tribunal to say that it wished to amend its IT3 to add a denial of discrimination under the DDA and indicating that it denied that Mrs Morgan was then or had been disabled within the meaning of that Act. It also denied that it had failed to make adjustments contrary to section 6 of the DDA. The University set out its proposed amendment to its IT3 verbatim; it included an indication that the University would be adducing evidence from its own Occupational Health Physician that the alternative jobs offered to Mrs Morgan had been suitable to meet her medical needs. The letter stated that the University had not received any Further and Better Particulars from Mrs Morgan's advisers.
7. On 9th December the Tribunal at Shrewsbury had before it a second preliminary hearing, to decide whether Mrs Morgan was a disabled person within section 1 of the DDA. When and in what terms the Tribunal had earlier specified the question to be heard and whether, before the hearing, any more clear specification by Mrs Morgan's Solicitors of her alleged disability had emerged in particulars is not a matter on which the parties before us were able to help us. However, no medical practitioner gave evidence on Mrs Morgan's behalf, either orally or by way of any report directed to the requirements of the DDA, although copies of a good many of her medical notes, going back as far as 1985, were produced by her for the Tribunal's scrutiny. Nor was any medical evidence called by the University. Only Mrs Morgan gave evidence.
8. Mrs Morgan was represented below by Counsel, who indicated that it was a mental rather than a physical impairment that was being asserted. That being so, Mrs Morgan needed to satisfy para 1 (1) of Schedule 1 of the DDA which provides:-

"1. (1) Mental impairment includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness."

9. Section 3 of the DDA enables the Secretary of State to give guidance about matters to be taken into account on a number of issues likely to arise in disability discrimination cases, guidance which tribunals in some cases are obliged to take into account. Whilst the nature of mental impairment is not, in terms, one of the issues so described, the guidance issued by the Secretary of State on 25th July 1996 (after he had laid a draft of it before Parliament) included, as paras 12-15:-

"12. Physical or mental impairment includes sensory impairments, such as those affecting sight or hearing.

13. Mental impairment includes a wide range of impairments relating to mental functioning, including what are often known as learning disabilities (formerly known as "mental handicap"). However, the Act states that it does not include any impairment resulting from or consisting of a mental illness unless that illness is a clinically well-recognised illness (Sch 1, para 1).

14. A clinically well-recognised illness is a mental illness which is recognised by a respected body of medical opinion. It is very likely that this would include those specifically mentioned in publications such as the World Health Organisation's International Classification of Diseases.

15. The Act states that mental impairment does not have the special meaning used in the Mental Health Act 1983 or the Mental Health (Scotland) Act 1984, although this does not preclude a mental impairment within the meaning of that legislation from coming within the definition in the Disability Discrimination Act (s. 68)."

Whilst it may be debated whether a Tribunal is bound to accept the guidance there given, it plainly cannot be wrong to accept it. Accordingly in general there will be 3 or possibly 4 routes to establishing the existence of "mental impairment" within the DDA namely:-

(i) proof of a mental illness specifically mentioned as such in the World Health Organisation's International Classification of Diseases ("WHOICD");

(ii) proof of a mental illness specifically mentioned as such in a publication "such as" that classification, presumably therefore referring to some other classification of very wide professional acceptance;

(iii) proof by other means of a medical illness recognised by a respected body of medical opinion.

A fourth route, which exists as a matter of construction but may not exist in medical terms, derives from the use of the word "includes" in para 1 (1), Schedule 1 to the Act. If, as a matter of medical opinion and possibility, there may exist a state recognisable as mental impairment yet which neither results from nor consists of a mental illness, then such state could be accepted as a mental impairment within the Act because the statutory definition is inclusive only rather than purporting to exclude anything not expressly described by it. This fourth category is likely to be rarely if ever invoked and could be expected to require substantial and very specific medical evidence to support its existence.

10. It is against that legislative background that the Tribunal had to determine whether Mrs Morgan was at any relevant time a disabled person. As for whether whatever she was suffering from had "a substantial and long-term adverse effect on [her] ability to carry out normal day-to-day activities", those being other necessary ingredients before a finding of disability can be made within section 1 (1) of the DDA, the Tribunal held that if there had been mental impairment they would have held those other components to have been present. Thus the crucial issue was whether she had adequately shown she had a mental impairment within the Act.
11. The Tribunal set out the evidence derived from Mrs Morgan's medical notes relating to periods after she had been assaulted by the Supervisor on 16th February 1998. They said:-

"3. On 25 February 1998 the applicant went to see her doctor and he recorded: "Feeling depressed, can't sleep ...... anxious".

4. On 14 April the applicant again visited her doctor and he recorded: "Bad still. Long discussion. Long term anxiety/depression. Needs counselling - agrees this time she will attend. Re-arrange."

5. On 28 April 1998 the doctor records: "Very low. Court case pending re. assault by her supervisor at work."

6. On 28 April 1998 the doctor signed the applicant off work for two weeks and his diagnosis was "nervous debility". There followed two further sick notes. One is dated 12 May 1998 for four weeks' diagnosing "anxiety" and another dated 9 June 1998 for five weeks also diagnosing "anxiety".

7. The applicant was away ill from work until her resignation on 28 December 1998.

8. On 5 June 1998 the doctor records the applicant as "Improving, Having counselling."

9. On 20 August the applicant was described by Doctor P Willdig, the respondent's consultant in occupational medicine, in a letter of that date to Lynne Mellor, human resources manager as follows:

"On relating the above series of events to me today, Mrs Morgan became obviously agitated and extremely tearful. She is obviously stressed and anxious by the sequence of events."

10. On 18 May 1999 her general practitioner describes the applicant as: "Feeling low. Not sleeping following last year's "assault" incident at work, still has problems although she resigned in Dec 1998. Has counselling .... helpful to a certain extent.""

12. Then the Tribunal referred to matters derived from the medical notes relating to dates before the assault, as follows:-

"11. The Tribunal's attention was drawn to a letter from the Salisbury General Infirmary dated 12 September 1985 where it stated:-

"This young lady was seen in A & E in a hysterical state and D as "acute stress reaction ... I suspect she is depressed and needs continuing care."

12. The Tribunal's attention was also drawn to a general practitioner's note dated 18 October 1990 where it indicates that the applicant was suffering from "mild depression.""

13. Then the Tribunal summarised the oral evidence which Mrs Morgan had given in their paragraph 14, as follows:-

"14. The applicant gave evidence that her life was adversely affected from the date of the assault until she went on holiday in August 1999. She stated that before the incident she would mop the kitchen floor and vacuum her carpets every single morning. After the incident she only reluctantly did this on a Sunday with moral pressure from her husband. She would often get the vacuum out in the morning, do virtually nothing all day, and put it away in the evening without using it. She would mix up the children's sandwiches and sometimes fail to give them the correct sandwiches or any sandwiches at all, and sometimes only gave them a drink. She sometime omitted to include a spoon so that they could eat their yoghurt. She had problems with making up their sandwiches about three times out of five every week. She would walk the children to school and her head would be full of thoughts about the incident at work, she failed to listen to what her children were saying and talking to her about, and she would take an extraordinary long time to cross the road. She hardly ever slept. Before the incident she used to read books from the library every month and afterwards she did not read at all. She used to do some embroidery before the incident but did not do so afterwards. Prior to the incident she used to enjoy going out with her family at the weekend, including visiting National Trust properties, shopping and having picnics etc.. After the incident she was just not interested in going out anywhere at all with the family at weekends. There were a couple of times when she had a panic attack, once in a public house and once in Woolworths where she just had to leave the premises and go home for no apparent reason. Although she was prescribed medication on one occasion by the doctor, for most of the period she was not on any medication. She had counselling. She had problems with the physical relationship with her husband. She wished to embark on an NVQ course. She started, but she had to give it up. She could not concentrate. Normally she would have enjoyed doing it."

14. The Tribunal then referred itself to a number of leading and relevant authorities. They turned to consider whether Mrs Morgan's state fell within any specific description mentioned in the WHOICD. They were thus looking at what we have called route (i) in para 9 above. They said:-

"There was certain doubt in the Tribunal's mind. There was no medical report as such before the Tribunal. It relies on the evidence of the applicant and in general terms the general practitioner's notes. We will not repeat the evidence that has been found in this regard which is set out earlier in this decision. We were particularly troubled by the absence of any firm indication on the evidence before us that the applicant may or may not have been suffering from a clinically well recognised illness. It was clear that the applicant was suffering from anxiety and stress, sometimes variously described as nervous debility or depression. The Tribunal were really left to their own devices to see if it might be possible to fit in the applicant's symptoms with those matters set out that we have earlier described in the International Classification of Diseases. The applicant has been helped throughout by her trade union, then solicitors, and Counsel at the actual hearing. However, try as we might the Tribunal were unable to be satisfied on the evidence that they heard and the documents that they saw that the applicant was indeed suffering from a mental impairment as described in the Act. There was no doubt that she was suffering from stress and anxiety and was depressed and this certainly had an effect on her life as is obvious from this decision."

15. Neither the whole nor even the whole of the material parts of the WHOICD was put before the Tribunal below but only the first sheet and two pages of parts (little, if anything, more than indices) relating to "Mood [affective] disorders F30-F39" and "Neurotic, stress related and somatoform disorders F40-F48". Those extracts merely subdivide the headings into sub-headings and further into sub-sub-headings but attempt no description of the symptoms to be expected with each. Thus, for example (though we cannot say this was necessarily the most relevant of the sub-headings), under F43 one finds:-

"F43 Reaction to severe stress, and adjustment disorders

F43.0 Acute stress reaction

F43.1 Post-traumatic stress disorder

F43.2 Adjustment disorders

.20 Brief depressive reaction

.21 Prolonged depressive reaction

.22 Mixed anxiety and depressive reaction

.23 With predominant disturbance of other emotions

.24 With predominant disturbance of conduct

.25 With mixed disturbance of emotions and conduct

.28 With other specified predominant symptoms

F43.8 Other reactions to severe stress."

There was nothing before the Tribunal by way of informed medical diagnosis which plainly or in terms ascribed Mrs Morgan to any of the headings in the WHOICD or which even told the Tribunal what could be expected to be found by way of symptoms or manifestation of any of the listed mental and behavioural disorders. After referring to para 14 of the Secretary of State's guidance (supra) the Tribunal concluded:-

"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 [sic] 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."

16. On 24th January 2000 the Tribunal sent its decision to the parties and on 6th March 2000 Mrs Morgan lodged her Notice of Appeal. Mrs Morgan is no longer represented by Solicitors or Counsel but her husband, Mr B.J. Morgan, as her lay representative, put in a skeleton argument and appeared before us on her behalf. Mr Kibling appeared for the University.
17. Mrs Morgan drew our attention to some of the medical notes that had been put to the Tribunal, some of which were summarised by the Tribunal in the passages we have cited. These included notes as to an Accident & Emergency incident in September 1985 when 4 tablets of valium were prescribed and "?Underlying depression" and "I suspect she is depressed and needs continuing care" was noted. However, by 3rd February 1987 a Professor of Psychiatry was reporting "no substantial evidence of depressive illness" and by 31st March 1987 that "It was gratifying that there was such substantial improvement in her mental state". The Professor reported "No frank evidence of a major depressional neurosis" in May 1987. Mrs Morgan was unfortunately frequently in need of medical care for a great range of physical discomforts or conditions over the years and by October 1997 a doctor reports "on-going recurring episodes of depression" consisting of "losing her temper, irritability and guilty feelings" that led to 5 counselling sessions. By March 1999, Mrs Morgan having made a claim to the Criminal Injuries Compensation Board ("CICB") in relation to the Supervisor's assault, there was a note of her having been "Of low mood pending Court case" and that it was "not known" if the assault had contributed to "an exacerbation of pre-existing long-standing anxiety/depression problem for which she has attended counselling in past. No obvious suggestion of this except G.P. Note of 28.4.98". Her G.P.'s clinical notes noted her speaking in September 1997 of problems then making her depressed, to her starting drinking and, in April 1995, of "long-term anxiety/depression" and, as the CICB note referred to, to her being "very low" with the Court case as to the Supervisor's assault pending. All these medical notes were before the Tribunal and, as we have said, some were specifically referred to in the passage from the decision cited above. On many of the noted occasions medication was prescribed but not in all cases and there was no one to tell the Tribunal what, if anything, could be inferred from the substances and amounts described or the periods over which they were prescribed.
18. Mr Morgan not unreasonably argues that it would be remarkable if an illness could be long-term, have a substantial effect on day-to-day activities, receive clinical treatment consisting of medication, time off work and counselling and NOT be a clinically well-recognised mental illness. However, that argument, first of all, assumes illness; secondly, in the absence of an informed explanation as to the medication, that reference to it adds little; thirdly, as to time off work, it fails to distinguish between physical and mental and short-term and long-term causes for absence from work and, fourthly, as to counselling, it fails to deal with whether or not the counselling was successful in eradicating the (assumed) illness. Moreover, it is more an argument that Mrs Morgan's condition, had only it been more fully explained than it was at the hearing, could have been properly recognised as an illness and as a clinically well-recognised one or as one specifically mentioned in the WHOICD than an argument that such was the conclusion which the Tribunal should have arrived at on the exiguous material put before the Tribunal at the time.
19. That Mrs Morgan could perhaps have satisfied the Tribunal that she had at some material time suffered from a clinically well-recognised illness is evident from a letter she obtained from Dr David Loughney on 2nd October 2001. It speaks of her suffering from "clinical depression" and that her mild depression of the past had been made worse by the assault. Even so, doubt remains because the WHOICD suggests the need (for example, under "Generalized Anxiety Disorder") for primary symptoms to be expected most days and usually for months and (for "Post-Traumatic Stress Disorder") "there must be repetitive, intrusive recollection or re-enactment of the event in memories, daytime imagining or dreams. Conspicuous emotional detachment, numbing of feeling ..... are often present but are not essential for the diagnosis". If what is being attempted is a claim to fall within a WHOICD category then "clinical depression" without more is insufficient. The work has no such simple category. That apart, we say only that Mrs Morgan could perhaps have satisfied the Tribunal as to her having "a clinically well-recognised illness" as it is conspicuous that although, in her letter to him, Mrs Morgan indicates to Dr Loughney that she had to be very pedantic about that particular wording, Dr Loughney, by mistake or design (we know not which), fails to answer in those required terms. However, an inescapable shortcoming in Dr Loughney's letter is, of course, its date, over 8 months after the hearing at the Tribunal and longer still after the relevant events. Further, as Dr Loughney seems to have provided the letter only a few days after being asked to do so, there is no reason to think that it or something like it would not have been available at the hearing.
20. Dr Loughney's letter cannot therefore be relied upon in the search for some error of law on the Tribunal's part. We have to limit our view of the evidence to that adduced at the hearing as it could and should have appeared to the Tribunal at the hearing. Whilst the words "anxiety", "stress" and "depression" could be dug at intervals out of the copies of the medical notes put before the Tribunal, it is not the case that their occasional use, even by medical men, will, without further explanation, amount to proof of a mental impairment within the Act, still less as its proof as at some particular time. Even G.P.s, we suspect, sometimes use such terms without having a technical meaning in mind and none of the notes, without further explanation, can be read as intending to indicate the presence of a classified or classifiable mental illness, either after the exacerbating events of the assault proceedings were over or at all. Indeed, the notes of the Professor of Psychiatry, possibly the most authoritative although speaking of a distant time, suggests its absence. There was no evidence from any doctor to explain what he had meant at the time his note was made, nor to assert that Mrs Morgan was at any time mentally impaired within the Act. Without our here setting out further extracts from the WHOICD, we notice that the work shews at many parts of its classification that specific symptoms, often required to be manifest over a minimum specified periods or with a minimum specified frequency, are required if a claimant relies upon falling within it. For Mrs Morgan to have pointed, as happened below, to the occasional references in the medical notes and then to the indices in the WHOICD, without any informed medical evidence beyond those notes, was to invite failure. We cannot say that the Tribunal's conclusion on that evidence was in error of law. We must therefore dismiss the appeal, but we do not do so without making some general observations.

(1) Advisers to parties claiming mental impairment must bear in mind that the onus on a claimant under the DDA is on him to prove that impairment on the conventional balance of probabilities.

(2) There is no good ground for expecting the Tribunal members (or Employment Appeal Tribunal members) to have anything more than a layman's rudimentary familiarity with psychiatric classification. Things therefore need to be spelled out. What it is that needs to be spelled out depends upon which of the 3 or 4 routes we described earlier in our paragraph 9 is attempted. It is unwise for claimants not clearly to identify in good time before the hearing exactly what is the impairment they say is relevant and for respondents to indicate whether impairment is an issue and why it is. It is equally unwise for Tribunals not to insist that both sides should do so. Only if that is done can the parties be clear as to what has to be proved or rebutted, in medical terms, at the hearing.

(3) As the WHOICD does not use such terms without qualification and there is no general acceptance of such loose terms, it is not the case that some loose description such as "anxiety", "stress" or "depression" of itself will suffice unless there is credible and informed evidence that in the particular circumstances so loose a description nonetheless identifies a clinically well-recognised illness. In any case where a dispute as to such impairment is likely, the well-advised claimant will thus equip himself, if he can, with a writing from a suitably qualified medical practitioner that indicates the grounds upon which the practitioner has become able to speak as to the claimant's condition and which in terms clearly diagnoses either an illness specified in the WHOICD (saying which) or, alternatively, diagnoses some other clinically well-recognised mental illness or the result thereof, identifying it specifically and (in this alternative case) giving his grounds for asserting that, despite its absence from the WHOICD (if such is the case), it is nonetheless to be accepted as a clinically well-recognised illness or as the result of one.

(4) Where the WHOICD classification is relied on then, in any case where dispute is likely, the medical deponent should depose to the presence or absence of the symptoms identified in its diagnostic guidelines. When a dispute is likely a bare statement that does no more than identifying the illness is unlikely to dispel doubt nor focus expert evidence on what will prove to be the area in dispute.

(5) This summary we give is not to be taken to require a full Consultant Psychiatrist's report in every case. There will be many cases where the illness is sufficiently marked for the claimant's G.P. by letter to prove it in terms which satisfy the DDA. Whilst the question of what are or are not "day-to-day activities" within the DDA is not a matter for medical evidence - Vicary -v- British Telecommunication plc [1999] IRLR 680 EAT, the existence or not of a mental impairment is very much a matter for qualified and informed medical opinion. Whoever deposes, it will be prudent for the specific requirements of the Act to be drawn to the deponent's attention.

(6) If it becomes clear, despite a G.P's letter or other initially available indication, that impairment is to be disputed on technical medical grounds then thought will need to be given to further expert evidence, as to which see de Keyper -v- Wilson [2001] IRLR 324 at p 330.

(7) There will be many cases, particularly if the failure to make adjustments is in issue, where the medical evidence will need to cover not merely a description of the mental illness but when, over what periods and how it can be expected to have manifested itself, either generally or to the employer in the course of the claimant's employment. Thus claimants' advisers, before seeking medical evidence, must consider also whether it will be enough to prove a present impairment and whether, instead or in addition, they will need to prove it at some earlier time or times and to prove how it could, earlier or at present, have been expected to have manifested itself.

(8) The dangers of the Tribunal forming a view on "mental impairment" from the way the claimant gives evidence on the day cannot be over-stated. Aside from the risk of undetected, or suspected but non-existent, play-acting by the claimant and that the date of the hearing itself will seldom be a date as at which the presence of the impairment will need to be proved or disproved, Tribunal members will need to remind themselves that few mental illnesses are such that their symptoms are obvious all the time and that they have no training or, as is likely, expertise, in the detection of real or simulated psychiatric disorders.

(9) The Tribunals are not inquisitorial bodies charged with a duty to see to the procurement of adequate medical evidence - see Rugamer -v- Sony Music Entertainment UK Ltd. [2001] IRLR 644 at para 47. But that is not to say that the Tribunal does not have its normal discretion to consider adjournment in an appropriate case, which may be more than usually likely to be found where a claimant is not only in person but (whether to the extent of disability or not) suffers some mental weakness.

21. No doubt as more cases are contested on "impairment" these general guidelines will require refinement but, to revert to our immediate task, we dismiss the appeal.