United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr G Pennel, Solicitor Of- Messrs Mackay Simon Employment Law Division Maclay Murray & Spens Solicitors 3 Glenfinlas Street EDINBURGH EH3 6AQ
For the Respondents	Mr A O'Neill, Queen's Counsel Instructed by- Messrs Raeburn Christie Solicitors 16 Albyn Place ABERDEEN AB10 1PS


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employee appellant against a decision of the Employment Tribunal that he did not have a disability which fell within section 1 of the Disability Discrimination Act 1995 ("The Act"). There is also an application in respect of unfair dismissal with which this part of the case and this appeal is not concerned.
2. Without going into any detail, it was not disputed that the appellant, during the currency of his employment, suffered from a depressive illness which can constitute a disability within the statutory meaning of that word. Nor, was it disputed as found by the Tribunal, that that disability did have an effect on normal day to day activities carried out by the employee appellant. The challenge that was mounted was against the conclusions of the Tribunal respectively, that the disability should not be regarded as substantial, nor capable of lasting for at least 12 months. On those two issues the Tribunal have found in favour of the employer and, accordingly, have reached the conclusion that, in terms of the statutory definitions, the appellant was not to be regarded as suffering from a disability. Their conclusions in this respect were as follows:-

Section 1 of the Act provides, subject to Schedule 1 that

"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."

That statement of principle requires to be applied by reference to a number of additional sources, which tribunals are required to take into account, in order to assess the existence or otherwise of a disability for the purposes of the Act. These sources include the Act, its Schedule 1, the Code of Practice and the Guidance Notes issued by the Secretary of State under the Act, as well as the increasing number of judicial authorities providing guidance about how the legislation is properly to be applied.

The tribunal started by determining the point at which the applicant, upon whom the onus of proving disability lay, had to establish that he was disabled. We determined, following the EAT's guidance that "the appropriate time at which to adjudicate whether a person is disabled or not is the date of the unfavourable treatment alleged to have been dealt to him" Cosgrove v Caesar & Howie supra, that it was as at 31 August 2000.

We then applied the test set out in the case of Goodwin, which reinforces the requirement of the Act for tribunals to examine the evidence before them by reference to four separate conditions in order to establish whether a person has a disability. The first condition to be addressed, which was not disputed, was whether the Applicant had a mental or physical impairment. A mental impairment includes a impairment which results from or consists of a mental illness provided that the mental illness is a clinically well-recognised illness (Schedule 1(1)). How the mental impairment was caused is not a relevant consideration. The respondent had conceded that the applicant suffered from a mental impairment in so far as his illness was a 'clinically well-recognised illness'.

The second condition for consideration was whether the impairment affected the applicant's ability to carry out normal day to day activities in any one of the respects set out in para 4(1) of Schedule 1 to the Act, and whether it had an 'adverse effect'. Although Miss Wilson mentioned mobility as one of the circumstances affecting the applicant, there was no evidence that his mobility was affected. As with cases of depression generally, we accepted that the only circumstance in the list which was applicable was the effect on the applicant's memory or ability to concentrate, learn or understand. What the tribunal has to focus on are the things the applicant either could not do, or only do with difficulty, rather than on things he could do. The applicant's evidence was that he was able to concentrate only for brief periods when reading, he was forgetful about minor matters such as switching off lights, items he was going out to buy, for which he now needed a list, or doing up his trousers. More significant was his complaint that he had to take a nap between Aberdeen and Forfar when driving to and from work. Although Dr Curran mentioned the applicant could be at risk of danger when crossing the road, due to diminished concentration, he conceded the applicant had not complained of putting himself at risk, or of a near miss occurring. He gave it merely as an example of a possible effect of reduced concentration. Para C7 of the Guidance Notes that "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 an activity over a reasonable period" seemed to us apt in the circumstances of this case. Having regard to the evidence, we concluded that the applicant's ability to carry out day-to-day activities was impaired.

Turning to the third condition – was the adverse effect substantial? – the tribunal had regard to the Guidance Notes which state that a 'substantial' effect is one which is more than minor or trivial' and is a limitation going beyond the normal differences in ability which may exist among people. We took into account the evidence in so far as it related to the applicant's ability to 'remember organise his thoughts, plan a course of action and carry it out, take in new knowledge or understand spoken or written instructions' as factors in considering memory or ability to concentrate, learn or understand (Para C20 of the Guidance Notes. The tribunal doubted that the evidence was sufficient to support a conclusion that the applicant was unable to do these things. Having regard to the examples contained in para C20, it was even less obvious that the adverse effects could be qualified as substantial. The fact that the applicant decided to pull in to take a nap when driving to and from work, indicated that he was aware of physical danger. We noted also the example given in Para C21 (perception of risk of physical danger) in relation to crossing the road. To qualify as substantial, the level of underestimation of physical danger suggested is 'persistent inability to cross a road safely'. The evidence, such as it was, on that point fell far short of that standard. We accordingly, concluded that the adverse effects were not to be interpreted as 'substantial' for the purposes of the Act.

The final condition to be fulfilled is that the adverse effect upon the applicant's ability is long-term. Under Schedule 1 para 2(1) "The effect of an impairment is a long-term effect if –

(a) (a)                 it has lasted at least 12 months;

(b) (b)                the period for which it lasts is likely to be at least 12 months; or

(c) (c)                 it is likely to last for the rest of the life of the person affected."

The tribunal noted that of the two, possibly three, episodes of depression suffered by the applicant, the latest commenced in August 1999. The applicant improved sufficiently to return to work, but then in January his condition deteriorated, and he was signed off work from 3 February, from which time he did not return to work for the respondents. In the ensuing months his condition improved to the extent that by 12 June there was in Dr Curran's words "a considerable improvement" and his hope and expectation was that recovery would be complete in the short to intermediate term", (A13/3). The evidence showed the applicant to have accepted he was not going to return to Shell, that he had adopted a positive attitude by setting out to seek and apply for other employment, presenting himself for interviews and making a fresh start. Dr Curran accepted that going back to work could often be the final lap in recovery for someone suffering from depression. The medical evidence recorded the applicant's own confirmation of increased energy, interest and spontaneity. It is for tribunals in coming to a legal decision to make their own assessment of the evidence and not to be over-influenced by the opinion of a medical expert Abadeh v British Telecommunications plc [2001] IRLR 23. It seemed to us that from mid-June into July the applicant could no longer be said to be suffering from an impairment which had a substantial adverse effect on his ability to carryout normal day to day activities. Accordingly, even if we had erred in concluding the adverse effects were not to be considered as substantial, the tribunal was unable to find on the basis of the evidence before it that the duration of the impairment had lasted at least 12 months, and could not therefore, be described as long-term within the definition in Schedule 1 para 2 of the Act. The fact the applicant was still on anti-depressants was as a precautionary measure to forestall the possibility of relapse. He himself testified that he was experimentally varying his dosage at that time, to establish if he could reduce his intake without it affecting him. That was consistent with his positive outlook by the summer of 2000 and his greatly improved condition. In any event, as at the date of his dismissal, the date of the unfavourable treatment, he was in our opinion, no longer suffering from a disability within the definition of section 1 of the Act.

The tribunal rejected the suggestion that the applicant should be regarded as having a past disability. Although he had suffered an episode of depression in the late 1980s, and what appeared to be relatively a mild bout in 1997 of unspecified duration, there was no evidence that these amounted to a disability, that is, lasting for at least 12 months, for the purposes of the Act. Accordingly, section 2 of the Act did not apply to him.

For all the foregoing reasons, the tribunal concluded that the applicant was not a disabled person for the purposes of the Act and determined, accordingly, that the part of his application relating to a complaint of disability discrimination should be dismissed."

3. We were referred to a number of authorities in particular, Goodwin v The Patent Office [1999] IRLR 4, Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19, Abadeh v British Telecommunications plc [2001] IRLR 23 and McDonald v London Borough of Ealing EAT/406/99 (unreported).
4. Mr Pennel, appearing for the appellant, argued itemised grounds of appeal, but, in substance, his complaint was directed towards the Tribunal's assessment of the evidence, in particular, its alleged failure to take into account what he described as the deduced effects focussed in paragraph 6 of Schedule 1 to the Act, in relation to the effect or lack of it of medication, and, also, the failure on the part of the Tribunal properly to take into account the issue of mobility. In both respects he submitted that the Tribunal had flown in the face of the evidence and thus failed to give proper account to both these factors which bore on both the issue of substantiality and the effect of day to day working and also the length of time that the disability was likely to last, being two of the tests which Goodwin supra require the Tribunal to consider.
5. Mr O'Neill, Q.C., appearing for the respondents, in a concise reply, simply stated that the matter was one of fact for the Tribunal to determine which they have done upon the evidence it being borne in mind that they had heard medical evidence which would be superimposed upon the medical reports to which Mr Pennel had made reference before us. In simple terms, while not necessarily mentioning the word "deduced", the Tribunal had considered the question of medication and its effect and had also considered the issue of mobility with particular reference to the evidence the appellant felt the need to take a nap while driving between Forfar and Aberdeen.
6. It is important to bear in mind that the role of the Employment Tribunal in assessing issue of disability, requires them to make findings in fact based on their own assessment of the evidence and, to that extent, they are a court of first instance as opposed to the position that prevails in relation to, for example, unfair dismissal for misconduct cases where they are, essentially, a court of review as to whether or not what the employer did could be rationally based and considered to be fair. The consequence of this is that the role of this Tribunal being addressed on any evidential question which, in turn, was addressed by the Employment Tribunal, is very limited. This Tribunal is not a court of appeal for a rehearing but is a court of review. It accordingly follows that when evidential matters are being considered or attacked before this Tribunal, the onus resting on the appellants successfully to challenge the Tribunal's findings in fact is very high and, effectively, amounts to an assertion that no Tribunal properly instructed against the background of the evidence could not have reached the conclusion that it did.
7. Against that test, we are entirely satisfied that the evidential findings of the Tribunal are supported by the evidence that they assert and that, furthermore, the issues that were addressed by Mr Pennel were properly addressed by them. It is plain that the Tribunal accepted evidence in regard to the issue of medication that it was not so much affecting the extent of the disability but more therapeutic and protective. Equally, when it comes to the issue of mobility, they plainly considered that the limited consequences in relation to driving were not sufficient to amount to a finding that such had a substantial effect on the way of life of the appellant.
8. For these simple reasons we are entirely satisfied that we cannot interfere with the findings of the Tribunal who have set out their decision clearly and rationally. This appeal is therefore dismissed.
9. The case will be remitted back to the same Tribunal to consider the issue of unfair dismissal.