United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P COPPEL (Of Counsel) Messrs Bircham Dyson Bell 1 Dean Farrar Street Westminister London SW1H 0DY


 


MR RECORDER BURKE QC

1. This is the preliminary hearing of the employee's appeal against the decision of the Employment Tribunal sitting at Reading chaired by Mr Simpson and sent to the parties with Extended Reasons on 11^th May of last year. Ms Power claimed that her employers, National Panasonic, by whom she was employed as an Area Sales Manager, had unfairly dismissed her, had discriminated against her in breach of the provisions of the Disability Discrimination Act 1995 and had been guilty of breach of contract. Because the other complaints were, or might have been, factually linked to her state of health, either by consent or by order the Tribunal heard first as a preliminary issue the issue as to whether Ms Power was disabled within the meaning of the 1995 Act. It concluded that she was not disabled and it is from that determination that she now seeks to appeal.
2. Section 11 of the 1995 Act says

"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".

The Disability Discrimination (Meaning of Disability) Regulations 1996 provide by Regulation 3(1)

"Subject to paragraph (2) below, addiction to alcohol, nicotine or any other substance is to be treated as not amounting to an impairment for the purposes of the Act".

3. There were defined sub-issues which the Tribunal had to decide on the preliminary issue which was before them. They are set out in paragraph 5 of the Tribunal's decision as follows

"(a) did the Applicant suffer from a principal condition of clinical depression to which alcohol addiction was secondary (the Applicant's case); or (b) did the Applicant suffer from addiction to alcohol to which clinical depression was secondary (the Respondent's case); and (c) did the Applicant suffer from phobic anxiety; and (d) were any of these conditions in 1997 and 1998 substantial and long-term and did they affect the Applicant's ability to carry out normal day to day activities".

As to (a) and (b) the Tribunal describe in their decision the evidence of Dr Bird, on behalf of Ms Power, whose opinion was in favour of the Applicant's case i.e. that she suffered from a principal condition of clinical depression to which alcoholic addiction was secondary, and the evidence of Dr Joyston-Bechal, on behalf of National Panasonic, whose view was that the Applicant suffered from addiction to alcohol to which clinical depression was secondary i.e. National Panasonic's case.

4. It concluded that both were very experienced consultant psychiatrists who were equally well qualified and that the evidence was so evenly balanced that they were unable to decide between them. The Tribunal thus decided that Ms Power had failed to show on the balance of probabilities that her condition had clinical depression as opposed to alcoholic addiction as its primary cause and, therefore, that that part of her claim failed. It did not need to go on to consider whether the addiction or depression was substantial and long term and affected her ability to carry out normal day to day activities. The Tribunal also rejected her claim in so far as it was based on phobic anxiety. It found that if she suffered from phobic anxiety, it was not such as to be substantial and long term and to affect her ability in relation to her normal day to day activities.
5. We start with the criticisms of which are made for the purposes of this preliminary hearing of the Tribunal's decision upon the principal issues, namely the issues relating to addiction and depression. At the heart of these criticisms there is an important point. At paragraph 17 the Tribunal said

"The 1995 Act requires the Tribunal to take into consideration Guidance issued by the Secretary of State. Paragraph 11 of the Guidance says "it is not necessary to consider how an impairment was caused, even if the cause is a consequence of a condition which is excluded. For example, liver disease as a result of alcohol dependency would count as an impairment".

The Tribunal goes on to say that neither party contended that if the Tribunal found that the primary cause of Ms Power's problems was alcohol addiction leading to depressive illness that this paragraph of the Guidance should be considered as thereby negating the effect of Regulation 3. It records that both parties argued and accepted that if the primary cause of Ms Power's problem was alcohol addiction, then the Applicant's claim failed by operation of the 1996 Regulations.

6. The Tribunal however took the view that there was or might be an apparent conflict between the Guidance and the Regulations. One of its members took the view that the Guidance had to be given full weight even if it conflicted with the express terms of the Act. The majority reached the opposite view and considered that though there was conflict between the Act and the Regulations on the one hand and the Guidance on the other, the statutory provisions should take precedence over the Guidance.
7. In our judgment, it is at least arguable, as Mr Coppel submits on behalf of Ms Power, that the Tribunal in taking this view that there was a conflict between the Guidance and the statute and the Regulations at all were in error because the Guidance permits, and advises, that conditions resulting from alcoholic addiction may be recognised for the purposes of Section 1 of the Act and are not excluded expressly or by implication by the Regulations which we have quoted in this judgment. We have no doubt at all that there is an arguable point here raised by Mr Coppel in paragraphs 15-19 of the Notice of Appeal.
8. However, we are bound to point out that there is a potential problem confronting Ms Power. We have already read paragraph 5 and summarised paragraph 17 of this decision. It appears from those paragraphs that the case below was presented by both parties, and possibly by agreement between the parties or between the parties and the Tribunal, that the issues were as set out in paragraph 5 and 17 of the Tribunal's decision and that the case on behalf of Ms Power was never run at all on the basis that, even if the Tribunal were to conclude either that alcoholic addiction was the primary cause of her trouble or was to conclude that it could not determine that it was not, nevertheless she was still entitled to succeed because the secondary condition of depression itself amounted to an impairment which would was not excluded by the provisions of the Regulations.
9. Mr Coppel, who appeared for Ms Power in the Tribunal, who's skeleton argument submits that the Tribunal was overly influenced by this agreement and today has to some extent sought to resile from the suggestion that there was an agreement in any formal sense, or even in an informal sense, at all. He says that the Tribunal had to decide the law and get the law right whatever agreement, either formal, informal or implicit, there was.
10. Even if there was no agreement at all, we can see considerable difficulties that might confront an appeal on this ground simply because on appeal it would appear that the case would be sought to be put in a manner in which it was not put in the Tribunal of first instance. However, because the point of law is as arguable as we conceive it to be, we do not think it right to shut out an appeal on that point. We believe that the proper course is to allow the appeal on this issue to go forward to a full hearing subject, if necessary (and we will discuss after we have finished this judgment what directions are appropriate) to the possibility of there being some preliminary hearing at which this Appeal Tribunal can decide, on an inter-parties basis whether or not the point should be allowed to be taken.
11. Mr Coppel next criticises the Tribunal's finding of fact, as set out in paragraph 9 of the decision, that Ms Power was consuming significant quantities of alcohol earlier than she in her evidence admitted i.e. prior to November 1997. It is not entirely clear to us that that finding was important to the conclusion or, if one likes to put it this way, absence of conclusion which the Tribunal eventually reached on the central issue. But assuming Mr Coppel to be right in his submission that this finding of fact was of some importance, we have to say that, having listened to him very carefully and having read his very full skeleton argument and Notice of Appeal with careful attention, we do not see any arguable point of law in any of his criticisms of that finding as set out in the Notice of Appeal and skeleton argument. There plainly was some evidence that Ms Power had been drinking in significant quantities before November 1997 which the Tribunal was entitled to weigh and from which it was entitled to draw inferences and reach conclusions. In our judgment the Tribunal reached a conclusion on evidence to which it was entitled to give such weight to as it wished.
12. It is next said that the Tribunal started from the wrong point by describing Ms Power's evidence as self-serving; and it is submitted that that was an erroneous approach because all evidence given by a party could in a sense be described as self-serving and there was nothing special about Ms Power's evidence in this case. We take the view that the Tribunal, in saying what they said, simply meant that in a case such as that which was before them, where it was accepted that there had been a period of alcoholism, it was necessary to approach the evidence of Ms Power with caution for the reason that the Tribunal itself explained, namely that the doctors both confirmed that alcoholics refuse to acknowledge the extent of their own drinking as a frequent occurrence. Mr Coppel makes the point that, by the relevant time, Ms Power had ceased to be an alcoholic, but it is clear from what he has told us that the defendant's doctor at least thought that somebody who had been an alcoholic continued at the very least to be at risk of alcoholic dependency and the Tribunal was entirely entitled in our judgment to take the view that it was necessary to approach the Applicant's evidence with caution as it did.
13. It is further argued that the Tribunal failed to take into consideration the difference between such drinking as there was prior to November 1997 and such drinking as there was thereafter. However, the Tribunal in paragraph 8 sets out what the drinking pattern was by early 1998 and records what the evidence was about drinking prior to November 1997 in paragraph 9 in very different terms. We do not see that there is any criticism arguably to be made out in that respect.
14. We do not propose to go through all of the points which are set out in the skeleton argument and in the Notice of Appeal in relation to that finding of fact. We have considered them all; and we do not think they give rise to any arguable ground of appeal. We draw specific attention to the evidence from the medical records that, in September 1997, Ms Power was drinking five bottles of wine per week at home and on her own. While we acknowledge that that is not the same as drinking a bottle of vodka and a bottle of wine, or more every day, as was the pattern early in the following year, we do not think there is anything in the suggestion that that note in the medical records is not an indication of drinking excessive quantities of alcohol, let alone, in the words used by the Tribunal, "significant quantities of alcohol."
15. Mr Coppel, thirdly in this area, submits that the Tribunal did not act correctly in its use of the evidence in the notes of Dr Bell as a whole that Ms Power had, in addition to drinking excessive alcohol, also taken unlawful drugs. It is suggested that the Tribunal should not have taken that factor into account at all. We do not see that as a matter of law that was an irrelevant consideration. It was capable of going to the claimant's credibility and also and perhaps more importantly to the issue as to whether she had a vulnerability to substance abuse. Dr Joyston-Bechal is said at paragraph 12 of the Tribunal's decision to have said this

"Her problematic use of cocaine before October 1997 implies that she has a vulnerability to substance abuse".

He plainly thought that that was a relevant part of the history and the Tribunal were entitled to take the same view.

16. For those reasons, while the points raised by paragraphs 15-19 of the Notice of Appeal are arguable the remaining grounds of appeal in 6-14 are not and those grounds will not go through to a full hearing.
17. We now finally turn in this judgment, for the length of which we apologise, to the phobic anxiety. In that area of the case Mr Coppel submits, for the reasons set out in his skeleton argument and the Notice of Appeal that the Tribunal came to a perverse conclusion. We take the view, and we make no indication as to what may be the eventual outcome of any substantive hearing of this appeal, that there is an arguable case that the Tribunal reached a perverse conclusion on this part of the case and that that too should go forward for a full hearing.
18. We will now consider what directions are appropriate, what notes are required and what category this appeal should be listed.