United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PETER WARD (of Counsel) Instructed by: Mr A Lewis Messrs Keoghs Solicitors 2 The Parklands Bolton BL6 4SE
For the Respondent	MR JOHN HAND QC (of Counsel) Instructed by: Mr C Harris Messrs Chandler Harris Solicitors 25 Byrom Street Manchester M3 4PF


 


JUDGE A WILKIE QC

1. This is an appeal by Mrs Jobling against the majority Decision of the Employment Tribunal sitting at Liverpool on 6 April 2001, hearing a preliminary issue concerning an application by her under the Disability Discrimination Act 1995. The majority Decision of the Tribunal was that she was not a disabled person and consequently her claim for unlawful discrimination was dismissed.
2. The Appellant had made three applications to the Tribunal. In addition to the Disability Discrimination Act application, she also claimed unfair dismissal by way of constructive dismissal and for findings in respect of Health and Safety activities.
3. The preliminary hearing which was ordered by a Tribunal Chairman, went on to make directions in respect of the furtherance of the other two claims though, pending the outcome of this appeal, we understand that the hearing of those claims has been put into abeyance.
4. The majority Decision comprised conclusions on two elements. Rather oddly, the Tribunal addressed first, the element which one might have thought logically came second and vice versa.
5. The essence of the majority Decision on the first element is contained in paragraph 11 of its Decision and was that the Applicant was not a disabled person. It was not accepted that, at least beyond February 1999, she had been unable to carry out any normal day to day activities. It was clear that she had felt well enough to return to work. The majority view was that her evidence was exaggerated and was not accepted.
6. On the second limb, the majority of the Tribunal, in paragraph 12, stated that if that was wrong, and there were normal day to day activities which Mrs Jobling was unable to undertake, the majority felt that the reason, postdating February 1999, was not a clinically recognised illness.
7. It is of some importance in this case to rehearse certain of the provisions of the Disability Discrimination Act 1995. Sub-section (1) provides that:

"(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."

Section 2 concerns past disabilities. Sub-section (1) provides that:

"(1) The provisions of this Part [and other Parts of the Act] apply in relation to a person who has had a disability as they apply in relation to a person who has that disability.

(2) These provisions are subject to the modifications made by Schedule 2."

Schedule 1 of the Act, paragraph 1(1) provides that:

"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."

Paragraph (2) of Schedule 1 concerns long term effects and sub-paragraph (1) provides;

"2-(1) The effect of an impairment is a long-term effect if -

(a) it has lasted at least 12 months;
(b) the period for which it lasts is likely to be at least 12 months; or
(c) it is likely to last for the rest of the life of the person affected."

Sub-paragraph (2) provides that:

"(2) Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur."

Paragraph 4 concerns normal day to day activities, and provides that:

"4-(1) An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following -"

There is then set out a list of various aspects of activity, one of which is (g) which is:

"(g) memory or ability to concentrate, learn or understand;"

Paragraph 6 concerns the effect of medical treatment. Sub-paragraph (1) provides that:

"6-(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."

8. The provisions of the Act also make it mandatory upon any Tribunal determining a claim under the Act to have regard to, or take into account, the provisions of guidance which is to be provided in the form of a Government issued document. Such guidance was issued in 1996. Section 8 of the Act provides for "Enforcement" and provides that any application or relief under the Act must be made to an Employment Tribunal and must be made within three months of the act of discrimination complained of. In this case the act complained of must therefore have occurred within three months prior to 16 March 2000, which was the date when the application was launched.
9. Schedule 2 of the Act concerns past disabilities and contains modifications referred to in Section 2. In particular, paragraph 5 of Schedule 2 substitutes certain sub-paragraphs in Schedule 1 as follows: for paragraph 2(1) to (3) there is substituted in the case of past disabilities the following:

"(1) The effect of an impairment is a long-term effect if it has lasted for at least 12 months.

(2) Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect recurs."

10. In this case there was evidence in support of the Applicant's contentions from witnesses of fact, namely herself, her husband and an erstwhile work colleague, Mrs Cooper. In addition to that, on the question of whether there was, at relevant times, a mental impairment, there was expert evidence in the form of reports and oral evidence on behalf of the Appellant by Dr Amin, a Consultant Psychiatrist, Mr Beckett, a Psychologist, and, on the part of the Respondent, from a Consultant Psychiatrist, Dr Monteiro, and from a General Practitioner with some expertise in occupational health matters, Dr Orton.
11. The Applicant, Mrs Jobling, put her case on mental impairment in two alternative ways. The primary way in which she put it was that she had suffered reactive clinical depression from November 1998; that this had continued throughout 1999 and beyond, and consequently, within the period of alleged discrimination with which the Tribunal had jurisdiction to determine, there was, on her primary contention, mental impairment in the form of a medically recognised mental illness, namely clinical reactive depression.
12. The alternative way of putting it was that in the course of 1999, if it be the case that her initial depressive illness had been resolved, there had been a relapse or a recurrence towards the end of that year, essentially focused on an episode in December 1999. Thus her case was either that there was a present disability, as evidenced by a continuing period of recognisable mental illness which had run for at least twelve months into the qualifying period or, alternatively, that there was a past disability which had occurred initially between November 1998 and February 1999, but had recurred in December 1999, so that by virtue of Schedule 2, the initial mental impairment was to be treated as continuing to have the effect complained of.
13. The majority of the Tribunal concluded that there was not a continuing depressive illness, but concluded that there had been a clinically recognised illness which ran from November 1998 through to February 1999. In reaching this conclusion, they accepted the opinion of Dr Monteiro, the Consultant Psychiatrist called on behalf of the Respondent. It appears that they were of the view that Dr Amin, the Appellant's Consultant Psychiatrist, in his evidence, both written and oral, had failed to satisfy them that there was a continuing mental illness. One of the pieces of evidence which appeared to weigh with them was that, according to their record, in paragraph 14 of the Decision, Dr Amin had agreed, under cross-examination, that the "relapse" in December 1999 was a "mood change" and not a recurrence of the depression. Such a concession would, of course, stand somewhat at odds with a contention that there was a continuing underlying mental illness.
14. One of the issues with which the majority had to grapple was the impact on their conclusion of the fact that Mrs Jobling had continued to be prescribed medication at varying levels during the period after February 1999. They addressed this in paragraph 15 of their Decision and from that, it appears that they accepted the opinion of Dr Monteiro that there was nothing in that that drove them to the conclusion that, albeit medication might be taken to alleviate symptoms, there was, nonetheless, a continuing underlying mental illness. They accepted his view that that was not the case. They did express in that paragraph the view that:

"If her doctor chose to continue with the drug it would probably be for psychological reasons - almost a placebo effect."

That being a sentence which appears after they had recorded Dr Monteiro saying he would have expected her to be weaned off, after a maximum of nine months. It appears that the first part of that sentence up to the description of it being "almost a placebo effect" was based on a specific answer being given by Dr Monteiro to questions. The words "almost a placebo effect" seem to have been their gloss on that answer. It is, of course, an untutored gloss and it might be that it is an unfortunate phrase with unfortunate connotations but, in our judgment, it would be fine toothcombing this Decision to accord that particularly unfortunate phrase with any particular legal relevance. In effect, therefore, the Tribunal in rejecting Mrs Jobling's primary contention, did so by the majority preferring the evidence called on this issue by the Respondent, in circumstances in which, it seems to us, they were entitled to do.

15. The alternative way that Mrs Jobling put it was that she said that the episode in December 1999 constituted a recurrence of the mental impairment which, if that were the case, would bring her within the terms of Schedule 2, paragraph 5. On that issue, the majority of the Tribunal concluded that the episode in December 1999 did not amount to a recurrence or relapse into her previously reactive depressive state. In so doing they were, once again, accepting the medical opinion expressed by Dr Monteiro in his report, and in his oral evidence. In paragraph 14, as we have indicated, they referred to oral evidence from Dr Amin, which appears to be at one with Dr Monteiro's analysis, namely that the episode in December 1999 was not a recurrence of the depression.
16. In that paragraph they also refer to this view being supported by Dr Orton. At first blush this is an odd statement to make in the light of a report which was placed before the Tribunal from Dr Orton by which its terms, appeared to accept that the episode in December 1999 did constitute a recurrence of that clinical depression. We have already noted, however, that Dr Orton was not a specialist in the field of psychiatry. He was a GP with some specialism in occupational health. We have been told by Mr Hand, who represented the Respondent at the hearing before the Tribunal, that the expression in paragraph 14 concerning Dr Orton's support for Dr Monteiro's opinion, derives from the, perhaps unsurprising, fact that, when confronted with the opinion of a Consultant Psychiatrist, Dr Orton resiled from his earlier expression of opinion on this issue, and aligned himself with the opinion of Dr Monteiro.
17. On this issue, it seems to us that the majority were perfectly entitled, on the evidence that they had before them, to come to the view that they did and, accordingly, the appeal against this part of the Decision, which is effectively a perversity appeal, is one which must fail.
18. The Appellant also, however, relies on paragraph 16 of the Decision, which reads as follows:

"16. Mrs Jobling has other influences in her life, such as IVF treatment and family upsets which could have contributed to some of the mood changes described by Mr Jobling."

They go on in paragraph 17 to say:

"17. Nor did the majority feel there had been any relapse or recurrence at the end of 1999. There no doubt was heightened anxiety on her part as a result of various events in her life but that did not, in the view of the majority, amount to a recurrence or relapse into her previous reactive depressive state."

The suggestion was made by Mr Ward, on behalf of the Appellant, that the Tribunal majority had erred in paragraph 16, in that he read that paragraph as constituting a statement of the majority of the Tribunal that she was not disabled, not suffering from a relevant mental impairment, because the triggering event for the December 1999 episode was external to the employment context. We have little difficulty in concluding that, if that were what the Tribunal said, it would be a manifest error of law and we understand Mr Hand would not, in those circumstances, seek to dissuade us from that view.

19. However, it seems to us perfectly plain in the context of the Decision that this very short passage in paragraph 16 is simply a link paragraph linking the previous paragraphs in which Mrs Jobling's contention that there had been a continuing mental impairment had been dealt with, to paragraph 17 where the question of the effect of the December 1999 episode was being dealt with. It seems to us that it was no more than a narrative linking passage and does not remotely have the meaning contended for by Mr Ward.
20. Therefore, in our judgment, the Decision of the majority of the Employment Tribunal, that she was not disabled because she was not suffering from a relevant mental impairment at the relevant time, is one which cannot be faulted, either in terms of its legal analysis or in terms of the evidence supporting it. That is sufficient to dispose of the appeal, Mr Ward accepted that if, on this issue, the Tribunal Decision was unimpeachable, then his appeal must fail.
21. However, in deference to his argument on the first element of the Tribunal's Decision, we feel it right to indicate what our view would have been, had it been relevant for us so to determine it. In effect, the Decision of the majority, as expressed in paragraph 11 of the Decision is that they did not accept that her impairment fell within the statutory definition, namely the substantial and long term adverse effect of her ability to carry out normal day to day activities, because they did not accept her evidence that it did. That paragraph is terse in the extreme. It comprises four sentences, three of which really amount to no more than an assertion of their conclusion and the fact that their conclusion was based on the fact that they did not accept her evidence. There is nowhere any mention of the evidence of the other witnesses whom she called, Mrs Cooper or Mr Jobling. There is nowhere any reference to the Guidance. There is no real indication of the reasoning process so as to enable us to conclude that, in this part of the Decision, the Tribunal had regard to the Guidance. Insofar as there is any expression of the reasons, it was the passages that it was:

"clear that she had felt well enough to return to work"

22. We had very serious misgivings as to whether this might amount to a misdirection in law, in the sense that first it focuses not on what she could not do, but on what she was able to do and second, it seems to focus exclusively on the position at work, whereas the authorities make it clear that, at the very least, normal day to day activities will include activities away from work and may well exclusively concern activities away from work. Thus, whether or not paragraph 11 is criticised for inadequacy, on the grounds that it fails to disclose why she has lost that part of the case, or whether it contains a manifest misdirection, it does seem to us that, if we had had to conclude this appeal by reference to this issue, this appeal would have been bound to succeed. As it is, however, this appeal fails because on the first issue it is legally unimpeachable and based on sufficient evidence to prevent it from being described as perverse.
23. However, in the light of the conclusion that we have drawn as to the quality of the Decision of the Tribunal on the question of impairment we do not believe that the Tribunal which heard the preliminary hearing should be the body which hears the successive parts of the claim. There is nothing in the directions which the Tribunal gave at the conclusion of the preliminary hearing, which required that the other parts of the claim - the unfair constructive dismissal and the Health and Safety aspects of the claim - be heard by the same Employment Tribunal. Our view is that it should not.
24. Mr Hand, in the course of his submissions made the point, and we think that it is a good point that, where, as here, the issues of disability discrimination are so tied up with issues of unfair dismissal and other applications, that the evidence on the substance of one is going to be substantially in common with the evidence on the substance of the others, that it is perhaps unwise to hive off, for separate and preliminary consideration, a question such as that which was hived off here, namely whether she falls at the first fence on a Disability Discrimination Act claim.
25. The result of the Chairman, having so ordered, is that both parties have been put to the time, expense and trouble of coming all the way here, whilst the main substance of their dispute remains in. It cannot be advantageous to either side to have litigation stretched out in this way by the separation of issues where, in truth, it is not sensible to do so. These observations and do not affect our decision which is that this appeal must be dismissed.