United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C BOURNE (of Counsel) Instructed By: UNISON Employment Rights Unit 1 Mabledon Place London WC1H 9AJ


 


JUDGE J McMULLEN QC:

1. This appeal concerns disability discrimination. It is an appeal by the Applicant in proceedings before an Employment Tribunal at Newcastle upon Tyne, chaired by Mr T.M. Garnon on 19 April, promulgated with Extended Reasons on 2 May 2002. The Applicant was represented there, as here, by Mr Bourne and the Respondent by a Solicitor.
2. The Extended Reasons in this case were given in respect of a decision on a preliminary issue. The Applicant claimed that she was disabled. That was the issue for the Tribunal to determine. The Applicant claimed that she had been unfairly dismissed, that there was a breach of Article 6 of the European Convention and that she had been victimised. Those three other matters are still live, awaiting a hearing before the Employment Tribunal.
3. The Applicant claimed that she fell within the definition of disabled under the Disability Discrimination Act 1995. The Respondent contended that she did not. Evidence was called before the Tribunal in the form of the Applicant herself and on behalf of the Respondent by a Consultant Psychiatrist, Dr Dunleavy, who had access to the clinical notes of the Applicant and these were before the Tribunal. The Tribunal decided the Applicant was not disabled. She appeals.
4. The Applicant was employed by the Respondent as a Senior Personnel Officer. Unusually today, Ms Hendry of the Respondent has been in the Tribunal and, without objection from Mr Bourne, has helped us a little more on the employment background, so that we are able to understand that the Respondent employs about 900 persons and has a Personnel Department at the relevant time of about 11 people headed by Ms Hendry and beneath her are three Senior Personnel Officers including the Applicant. The Applicant was employed from 1992 until she was dismissed on 9 November 2000. The hearing proceeded to determine whether or not the Applicant was disabled. The claim she had made was advanced by further particulars ordered by the Tribunal as follows:

"The Applicant's impairment is a mental impairment diagnosed as depression. The condition affects her ability to carry out normal day-to-day activities, namely her memory or ability to concentrate, learn or understand in the following ways: …"

And four discrete examples were given.

5. The Employment Tribunal expressly directed itself by reference to Section 1 of, and Schedule 1 to, the 1995 Act and by reference to the principal authorities: Goodwin v The Patent Office [1999] IRLR 4; Vickery v British Telecom [1999] IRLR 680; College of Ripon and York St John v Hobbs [2002] IRLR 185; and Morgan v Staffordshire University [2002] IRLR 190. The Tribunal also noted further submissions in relation to four other authorities cited by the Respondent. Correctly, in our judgment, the Tribunal cleaved expressly to the guidance given by Morison P in the Employment Appeal Tribunal in Goodwin v The Patent Office, which was for them, as it is for us, a critical instrument for our understanding of cases under the Act. The question therefore for the Tribunal involved a construction of the Act and the application of the Act to the facts which it found. These were as follows.
6. The Applicant undoubtedly had had a very difficult time in the late 1990s. She had a number of tragic events in her personal life and family life and in due course took time off for maternity leave. The Tribunal said it was unsurprising that she suffered from the effects of stress and anxiety, but held that it was not indicative of any mental illness on the part of the Applicant or of any impairment. The Tribunal acknowledged that she had difficulty coping with what would have been a difficult time for anybody but adjudged that this did not constitute an impairment within the meaning of the Act. The Applicant had medical assistance from her GP and the Tribunal expressly referred to the clinical notes. She had medication at various times in 2000 and, contrary to the finding of the Tribunal, in 1999. We ourselves have examined those clinical notes and it seems that Mr Bourne is right when he submits that the Tribunal may not have focused on the medication, which the medical notes disclosed to have been administered to her during a period that began in the middle of 1999 and continued to 2000. There were breaks which Dr Dunleavy, the Consultant, acknowledged were reasonably due to the Applicant's unwillingness to take medication post-pregnancy. At the same time as the Applicant was suffering these difficulties in her personal life and trying to hold down a job at the Respondent, she also was engaged in teacher training so as to change her career and it is noted by the Tribunal that she accomplished difficult tasks set for her, including teacher training for periods of time.
7. The job for the Tribunal was therefore to apply the law to those facts. It reminded itself of what was said in Anya v Oxford University [2001] ICR 847 CA and is a standard jury direction, that a witness may be credible, honest, trustworthy and yet mistaken. It diagnosed the main difference between the Psychiatrist's view and the Applicant's view as being not truthfulness, but the objectivity which the Applicant applied when looking back at the substantiality of the symptoms which she suffered at various times. That is a finding made by the Tribunal when assessing, on the one hand the evidence of the Applicant about her own appreciation and the evidence of Dr Dunleavy as an expert.
8. Section 1 of the Disability Discrimination Act defines disability as a physical or mental impairment which has a substantial and long-term adverse effect on the Applicant's ability to carry out normal day-to-day activities. It is therefore for the Applicant to establish disability. Schedule 1 sets out various forms of assistance. Paragraph 4(1) says:

"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 –

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

9. That is the one which applies in this case. The effect of medication is to be discounted. In Goodwin (above) Morison P determined that the Act set out four conditions as follows: see page 308 A-C:

"(1) The impairment condition

Does the applicant have an impairment which is either mental or physical?

(2) The adverse effect condition

Does the impairment affect the applicant's ability to carry out normal day-to-day activities in one of the respects set out in paragraph 4(1) of Schedule 1 to the Act, and does it have an adverse effect?

(3) The substantial condition

Is the adverse effect (upon the applicant's ability) substantial?

(4) The long-term condition

Is the adverse effect (upon the applicant's ability) long-term?"

As Morison P observed:

"Frequently, there will be a complete overlap between conditions (3) and (4) but it will be as well to bear all four of them in mind. Tribunals may find it helpful to address each of the questions but at the same time be aware of the risk that disaggregation should not take one's eye off the whole picture."

10. That then was the task the Tribunal set about. It expressly reminded itself of keeping an eye on the whole picture: see paragraph 10 of its Reasons. It looked at the submissions made under each of those heads.
11. Before us three criticisms have been made which Mr Bourne has helpfully described as "the impairment issue", "the substantiality issue" and "the longevity issue". We will take them in the order that Morison P set them out. As to impairment, it is contended that the Tribunal erred when it found, as a matter of construction and of application of its construction to the facts, that the Applicant did not suffer an impairment. The Tribunal decided to define the meaning of impairment and said this:

"The very word 'impairment' derives from the Latin word the root of which is 'peior' meaning worse. Like any comparative adjective it involves a comparison with something else: Worse than who, worse than what? In our view, it means worse than the normal band of responses of average people. It does not mean worse than the median point otherwise 49.99% of the public would be suffering from an impairment. The applicant's reaction to these external pressures was no worse than the vast majority of people would have felt."

12. The Tribunal also decided that "… an impairment must … mean that the applicant is more susceptible than the vast majority of other people would be". In our judgment that is both a literal and a commonsense approach to the meaning of impairment and cannot be faulted. Mr Bourne submitted that it must be judged by reference to the Applicant's own normal condition so that if, as a consequence of the condition from which she was suffering, her ability to carry out normal day-to-day activities was adversely effected, then she would be disabled. It is not relevant to consider whether the ability of the vast majority of other people would be similarly affected.
13. We consider that impairment does indeed involve some comparison between people who are not suffering in the way than the applicant is and in our judgment the approach of the Tribunal reflects that condition.
14. The second issue is the adverse effect condition. It is submitted that the Tribunal failed to follow the guidance given in Goodwin which is to consider this: see page 309:

"In order to constitute an adverse effect, it is not the doing of the acts which is the focus of attention but rather the ability to do (or not do) the acts."

15. In our judgment the Tribunal did not fall into the error identified by the EAT in Goodwin. It did consider what her ability was and whether she was able to do the acts, or to do them only with difficulty. The Tribunal paid particular attention to her performance in her teacher training. The Tribunal noted that the medical records did not indicate that the Applicant was suffering from a mental illness. The Tribunal found, by reference to her own evidence, that she had done all the work asked of her on her course. The Tribunal found that she was trying to cope at home with the difficulties in her life and yet had nevertheless accomplished the task. As the Tribunal said, it was not an easy task. Therefore, her ability to carry out normal day-to-day activities cannot, in its view, have been substantially impaired during this period of time. We consider that the Tribunal correctly applied Goodwin to the second condition.
16. The third issue relates to the substantiality of the condition and, in our judgment, the Tribunal has correctly recognised that it should consider the relevant periods when the Applicant had maternity leave, had other periods off work, the reasons for those periods off work and the discounting of medication during those periods. The Tribunal concluded: "In our view there is insufficient evidence to find the applicant was only coping with difficulty ... . We accept the evidence of Dr Dunleavy that the applicant was suffering from a mental illness from January 2000 to June 2000" and therefore there was, at least at the beginning of this time, grounds for a judgment that she was suffering from a condition. The Tribunal then considered the longevity condition. This is to look at how long the Applicant was suffering from what the Applicant contends is an illness.
17. As we have indicated at the outset, a review of the clinical notes indicates the Applicant was suffering from a condition for which she received medication for a period of at least a year. The Tribunal therefore failed to recognise that and may well have confused the two periods by reference to the difficult-to-read notes. Nevertheless, notwithstanding our acceptance of Mr Bourne's submission on this point, we are required to look at the matter as a whole and, as he acknowledged, in order to succeed he would have to have succeeded on the other points as well.
18. In our judgment the Tribunal carefully balanced the issues and the submissions made to it in the light of the evidence, and of the assertions made by the Applicant which they regard as possibly mistaken, since the Tribunal was taking an objective view of what the Applicant's condition was.
19. In the circumstances, therefore, notwithstanding Mr Bourne's powerful submissions, successful in part as they are, we hold that the Tribunal did not err in law in making the decision that the Applicant was not disabled within the meaning of the Act.