United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR KEVIN HARRIS (Representative) Free Representation Unit 4th Floor Peer House 8-14 Verulam Street London WC1X 8LZ


 


MR RECORDER BURKE QC:

1. This is the preliminary hearing of Ms Latchman's appeal against the decision of the Employment Tribunal sitting at London South, chaired by Mr Peters and promulgated with extended reasons on 15 September 2000, by which the Tribunal, on a preliminary issue arising in the course of Ms Latchman's claim under the Disability Discrimination Act 1995 (the Act), held that Ms Latchman was not a disabled person for the purposes of that Act and in consequence dismissed the claim.
2. The employee, Ms Latchman, started working for the employer as an assistant management accountant in December 1998. She was dismissed in June 1999 on the grounds that her 6 month probationary period, to which her employment was subject, had been unsuccessful because of poor performance and because of absences which had been connected with her health. The employers did not accept Ms Latchman's version of events as set out in her originating application and denied that she was disabled within the meaning of the Act.
3. The Tribunal appreciated at the outset that it was necessary to decide, as a preliminary issue, whether Ms Latchman was a disabled person for the purposes of the Act; and the hearing which lead to the decision now appealed from but was arranged for the purpose of resolving that issue. The issue was whether, on the evidence, Ms Latchman did or did not have, at the material time, a physical or mental impairment which had "a substantial and long-term adverse affect on her ability to carry out her normal day to day activities".
4. These words in section 1 of the Act have to be read together with the provisions of Schedule 1 of the Act which contain important assistance as to the interpretation of the words "impairment", "long-term effect" and "normal day to day activities" in section 1 and contain further important provisions directly bearing on the interpretation and application of the Act.
5. It was accepted that Ms Latchman was suffering from two mental conditions at the date of her dismissal, namely, bulimia nervosa and severe depressive episodes. The dispute centred on whether her two conditions, the bulimia and the depression, separately or together, had a substantial and long-term effect upon Ms Latchman's ability to carry out her day-to-day activities, the employer's case being that her conditions were not such as to cause an adverse effect which was either substantial or long-term as defined by the Act and the Schedule.
6. The Tribunal correctly directed itself briefly as to the relevant provisions, with one exception to which we will come, at paragraphs 28 to 32 of its decision. In paragraph 33 of its decision the Tribunal referred to guidance issued by the Secretary of State, which guidance is to be taken into account in determining whether impairment has a substantial adverse affect falling within section 1, and proceeded to set out so much of that guidance as they regarded as helpful.
7. The Tribunal had before it evidence from Mr and Ms Latchman and from Dr Rowan, who appears to have been a consultant psychiatrist, called on behalf of the employers, in addition to a written medical report from a Dr Bijlani, on behalf of the applicant, who was involved in treating Ms Latchman, but whose precise medical status is unclear and also a medical report form filled in for DHSS purposes by a Dr Sennik. Precisely what form of doctor he was is also unclear. The majority of the Tribunal concluded that Ms Latchman's two conditions, separately or together, did not amount to mental impairment which had a substantial and long-term adverse affect upon her, i.e., substantial adverse affect lasting or likely to last for at least twelve months. In effect, the majority of the Tribunal accepted the evidence of Dr Rowan which was set out at some length in the decision.
8. The minority Member preferred the evidence of Dr Biljani, supporting it by Dr Rowan's evidence that there was still a condition of depression which was present at the time of the hearing and which condition had obviously lasted for a period in excess of 12 months.
9. Mr Harris, who has put forward the arguments set out in his skeleton with economy and ability this morning, submits, firstly, that the Tribunal misdirected itself or erred in law by, in effect, delegating its decision to Dr Rowan when it was for the Tribunal to decide rather than for Dr Rowan to decide whether there was or was not the substantial adverse affect of sufficient duration which Ms Latchman had to establish. In so doing, Mr Harris relied on Vicary v British Telecommunications Plc [1999] IRLR 680, where this Appeal Tribunal chaired by the then President, Mr Justice Morison, held that it was an error of law so to delegate. In our judgment, there is no indication in the decision that the majority of the Tribunal delegated to Dr Rowan their duty to make a decision on the facts. They plainly preferred Dr Rowan's evidence; they were, in principle and all other things being equal and correct, entitled to do so. We see no basis on which it could arguably be said that the majority had surrendered their function of making a decision on the facts to Dr Rowan.
10. Mr Harris then goes on to argue, based on paragraphs 8 and 9 of his notice of appeal, that as the Tribunal's findings demonstrate, Ms Latchman was suffering from a milder depressive illness. By using the word "milder", the Tribunal were contrasting her continuing depression with her more acute episode of depression which was present at the time of the dismissal and Mr Harris submits that the Tribunal ought to have found that that continuing condition had a substantial adverse affect upon the applicant which had lasted for the requisite period.
11. Dr Rowan clearly did not take that view; but, says Mr Harris, Dr Rowan had only examined the claimant once in January 2000 and had not seen her thereafter, until the day on which she and he appeared at the Tribunal; and, therefore, in considering the severity of the milder but continuing depressive illness, the Tribunal should have taken into account the evidence of Mr and Ms Latchman as to what had happened since the dismissal and, indeed, since Dr Rowan's examination because that evidence, of which Dr Rowan could not be aware, went to the issue of both substantial adverse affect and the duration of any such affect upon the applicant's ability to carry out her normal day-to-day activities. It does not appear to us that the majority of the Tribunal, in considering its decision has made any reference to Mr and Ms Latchman's evidence on this issue. At an earlier part of its decision, the Tribunal found a series of facts which findings do not go into any detail as to what the continuing complaints arising from the depression actually were. Mr Harris tells us, and at this stage we must accept it from him, that Ms Latchman's evidence to the Tribunal was that she continued to suffer from agoraphobia which is described by the Tribunal in paragraph 38 as a fear of going to busy places but which was more fully described by her as an inability to go to supermarkets, to restaurants, to pubs or to go on public transport without being accompanied either by her husband or by her mother.
12. In our judgment it is arguable that, in concluding as the Tribunal did, that there was no substantial adverse affect which had lasted for the requisite period resulting from the milder depressive illness and the fear of going to busy places, which the Tribunal accepted to be existing, the Tribunal either failed to take into account the evidence of Mr and Ms Latchman as to the effects of the continuing mild depression or it misunderstood what appears arguably to amount to an inability to carry out normal day-to-day activities or it came to a decision which arguably no reasonable Tribunal could have reached and which was therefore perverse. We are not for one moment saying that, at the full hearing of this appeal, those grounds will be successfully made good; but it does seem to us, on what Mr Harris tells us was Ms Latchman's evidence, which evidence is not described in the decision, that it is arguable that the Tribunal fell into error as we have described.
13. For those reasons, we are going to allow this case to go forward to a full hearing of the appeal on the grounds set out in paragraphs 8 and 9 and 11 and 12 of the notice of appeal; but we do not, however, think that there is any arguable case under paragraph 7.
14. We now have to turn to a separate argument which Mr Harris puts forward. It arises from paragraph 6 of Schedule 1 to the 1995 Act. That paragraph provides:

"an impairment which would be likely to have a substantial adverse effect upon 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 needs to be treated as having that effect."

15. Put shortly, it seems to us that what the law requires is that, if an applicant is undergoing treatment to correct the effect of her physical or mental condition and that treatment is procuring an improvement in her condition, then that improvement arguably has to be disregarded by the Tribunal in making its decision as to whether or not there is a disability within section 1. There is little doubt that the applicant, Ms Latchman, was receiving treatment; at paragraph 20(vi) of its decision, the Tribunal records that Dr Rowan in his report had said that the claimant's bulimia had become less severe with treatment. There is also a reference to her being on Prozac; and Mr Harris tells us that she was intermittently on Prozac during the relevant period and was also taking, as an anti-depressant of a different type, St John's Wort as part of her treatment. Her evidence was that these medications had an affect on her condition. The Tribunal does not refer to paragraph (vi) of Schedule 1 in its decision although Mr Harris tells us that he took this point that the Tribunal appeared to have overlooked it.
16. It is clear from the decision from this Appeal Tribunal in Abdeh v British Telecommunications Plc [2001] IRLR 23 that the Tribunal, once the point had been raised (and possibly even if it had not) was bound to consider this point once there was evidence that Ms Latchman was undergoing treatment which had affected, or might have affected, the severity of her condition; and it is plainly arguable that the Tribunal in failing to consider the effect of paragraph (vi) of Schedule 1 on this case, erred in law.
17. Accordingly that ground of appeal also should go forward for a full hearing. Thus all grounds, save the grounds set out in paragraph 7, are arguable; and there will be a full hearing of the appeal on those grounds, save for that paragraph to which we have specifically referred.