United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A SHORT (of Counsel) Instructed By: Messrs Whittles Pearl Assurance House 23 Princess Square Albert Square Manchester M2 4ER
For the Respondents	MR I SCOTT (of Counsel) Instructed By: Messrs Charles Russell Solicitors 8-10 New Fetter Lane London EC4A 1RS


 


HIS HONOUR JUDGE LEVY:

1. By Notice of Appeal dated 29 July 2002 Miss Maureen Woods ("the Appellant"), appeals from a decision of an Employment Tribunal sitting in Leeds on 20 May 2002. One of her complaints is that when the matter was called on, and, indeed, previously, an adjournment requested by her solicitors, who had relatively recently been appointed to represent her at the Tribunal, was refused. Counsel, who did not appear below, and who appears for her today, has submitted that the refusal to adjourn was inappropriate. Because that submission, if successful, might be determinative of this appeal, without looking into the other ground, we decided to hear full argument from both Counsels on it. We have duly heard submissions encapsulating skeleton arguments with oral submissions.
2. It is apparent to us that at the early stages of her application the Appellant was represented by the Union, proudly called "Britain's Best Union" at page 56 of the bundle, the GMB. So far as medical evidence was concerned, it was apparent that those advising her thought that the matter for decision would be about her fitness to come back to work. No steps were taken while the GMB were acting for her, to get medical evidence for the appeal. The chronology shows that there was a telephone directions hearing on 5 December 2001. Part of the Decision on that Hearing reads:-

"The Chairman said that he felt this was quite a long time when there were only 5 witnesses (he had been told 5 days would be required). He queried whether disability was admitted. Mr Derek said he would be surprised if it had not been admitted as that was the basis for the grounds of capability not disciplinary. NR explained that she understood that the Applicant has just undergone a medical examination by the Respondent's occupational health doctor and she had not yet seen this report which could have a bearing as to this point. The Chairman asked when this would be available. NR explained that she would probably get a copy of it tomorrow. The Chairman asked whether it would be possible therefore for disability to be admitted or not by 21 December. NR confirmed that this would be possible."

3. It was very soon thereafter made clear that disability would not be admitted by the Respondent. Nothing seems to have been done by the Appellant's representatives to gather any medical evidence prior to the time that those, now representing her, wrote to the Employment Tribunal. On 20 December 2001, Messrs Charles Russell, who, at all times represented the Respondent, wrote to the GMB with a copy to the Tribunal in accordance with the directions made at the telephone hearing on 4 December "We confirm we do not accept the Applicant is disabled within the meaning of the Disability Discrimination Act. We understand this will not be dealt with at a separate hearing but will form part of the main hearing set for 20 May 2002."
4. Nothing then seems to have been done by the Appellant regarding medical evidence prior to the present solicitors commencing to act for her on 20 March 2002. Nothing was thereafter done prior to the present solicitors writing on 8 April 2002 to the Respondent's solicitors. They asked if the psychiatrist assessing the Appellant, on behalf of the Respondent's Occupational Health Department, Doctor Gwinner, could be asked to expedite an assessment and to deal with the relevant assessments of DDA. No attention was drawn to the case of Morgan which had recently been published in the Law Reports.
5. On 19 April 2002, their solicitors further wrote to the Respondent's solicitors confirming the agreement to use the assessment to prepare for the hearing, and requesting that his report dealt with the definitions of disability under the DDA. On 22 April 2002, Messrs Charles Russell replied regarding the timescale for the Psychiatric Assessment Report and the need for further investigation from the general practitioner.
6. On 10 May 2002 a report was received from Dr Gwinner which concluded the Applicant had suffered from recurrent depressive illness since 1969. That report was received by the Appellant's solicitors on 14 May 2002. On 14 May they wrote to the Tribunal requesting postponement on the ground that the report of Dr Gwinner did not deal with the definition of disability.
7. The Respondent's solicitors wrote to the Appellant's solicitors to refuse consent to the postponement saying that:-

"We do not believe that Dr Gwinner would be capable of dealing with whether your client was at the relevant time disabled within the meaning of the Disability Discrimination Act as you appear to require. It is our understanding from his report that he does not believe her to be disabled within the meaning of the Act now. Dr Gwinner is unable to advise retrospectively and we are in the process of obtaining a letter from him which confirms this. It is, in any event, for the Tribunal to make its decision, based on the evidence it has before it at the time."

That letter was dated 14 May 2002. On 15 May a fax was sent by Dr Gwinner stating he was unable to give an opinion as to whether the Appellant would fulfil the criteria for inclusion under the DDA during the material period. On 15 May the Appellant's solicitors made a further application for adjournment following the statement that Dr Gwinner was unable to advise retrospectively. They asserted they had been previously assured that Dr Gwinner had been asked to advise on the issue of disability; this was disputed. On 15 May 2002 the Respondent's solicitors again wrote to resist the postponement. By letter dated 15 May 2002 the Tribunal refused the request for postponement. In that letter the Chairman said this:-

"The chairman has directed that the issues in this case have been clear for some time and the applicant's solicitors are well aware of the issues they should have asked their expert to report on.

The hearing will proceed as listed."

8. Following that a further fax was sent to the Tribunal asking for an adjournment to which the Tribunal replied on 15 May in reply to a fax from the Appellant's solicitors of 15 May:-

"Your faxed letter of 15 May 2002 has been referred to Mr Simpson a Tribunal Chairman, who has stated that his earlier directions out lined in our letter of 15 May still apply."

In one of the documents it was indicated that the application for adjournment could be renewed at the hearing, which it duly was. Following a further fax of 16 May from the Respondent's solicitor requesting an adjournment, the Employment Tribunal replied the same day:-

"The further explanation given by the applicant's solicitors simply does not explain why it is that the parties have not properly prepared for the hearing.

If an adequate explanation is given to the full Tribunal on 20 May 2002, the question of a postponement can be re-visited but the total absence of an explanation relating to the period 4 December 2001 to 20 March 2002 is not acceptable."

The position was made quite clear that the period where nothing appeared to be done was considered so far as the Tribunal was concerned.

9. An able and determined submission was made to us this morning by Mr Short, who did not appear below but now appears for the Appellant. He has tried to persuade us there was an important gap in the reasoning of the Respondent. His oral submission was based on factual contentions set out in paragraph 31 of his skeleton argument. They were as follows:-

As a result of the conversations between the solicitors when they are both on scene, the Appellant's solicitors believed that the report from Dr Gwinner would deal with the recognition of the disability. The contents of the letter of instruction which predated the correspondence and which was made available upon discovery was not inconsistent with this belief and the belief was reasonable. The belief was known to the Respondent's solicitors who encouraged or acquiesced in that belief. The Appellant's solicitors were first informed that the report would not deal with this issue on 14 May; they sought an adjournment immediately upon discovering the report would not deal with the issue.

Of those factual points it is important to note that nothing was said regarding the delay prior to the Respondent's solicitors coming on the scene. Further we do not accept the suggestion that the Respondent's solicitors knew of the Appellant's, or encouraged in the Appellant's belief. The skeleton argument and submission continued:-

"All that would have been required from Dr Gwinner was a statement to the effect of whether the recurrent depressive illness comprised (in his view) a recurrent depressive disorder (or some other illness) for the purposes of ICD-10. Had such a statement been made, the appellant would have succeeded upon the issue of disability."

The correspondence to which we have referred showed that Dr Gwinner was not able to do that. The submission continued:-

"In refusing to grant the adjournment, the Tribunal failed to consider (or to give any adequate consideration to):- the Appellant's solicitors belief whether or to what extent that belief had been reasonable, whether and to what extent the belief had been encouraged or acquiesced in by Charles Russell prior to 14 May 2002."

We were reminded of grounds on which the EAT can interfere by reference to the well-known decision in Noorani v Merseyside TEC Ltd [1999] IRLR 184.

10. Against that, Mr Scott took us to the reasoning of the Tribunal. He submitted that it was quite clear why the Tribunal refused the adjournment; in particular, he draws attention to what was said following the reference to the recent decision of Walton in paragraph 12, in paragraph 13 and 14 of the Extended Reasons:-

"The tribunal feels also that it should say, with regret, that it is likely that this has been the case because of error by her representatives in not providing appropriate medical reports for this hearing.

14. Before the hearing began a submission was made by the Applicant's Representative that the hearing be postponed to give time for a Consultant's report to be obtained. This would help the Tribunal decide whether the Applicant's illness resulted from or consisted of a medically well recognised illness. The application had been registered on 17 October 2001, appearance entered 9 November 2001 and at a telephone directions hearing on 4 October 2001, chaired by the Regional Chairman, directions had been given. These did not give specific directions as to medical reports but said that if the issue of the Applicant's disability was still an issue it would be decided at the full hearing in May 2002. Bundles were to be agreed and prepared on or before 22 April 2002. At this time the Application was represented by her Trade Union, the GMB. They believed that a Consultant's report prepared for the Respondent in relation to the Applicant's intention to return to work would be enough for the purposes of the Tribunal hearing (an important finding). On 20 March 2002 a firm of Solicitors was instructed by the Applicant. However, it was not until 14 May 2002 that they wrote to the office of ETS asking for a postponement on the basis that the Consultant's report referred to did not specifically deal with the issue of disability. A Chairman refused that request for postponement on the basis that no explanation had been given for the delay in preparing properly for the hearing. The Tribunal found that the lack of a medical report dealing with the definition of disability was not necessarily fatal to the Applicant's case. The Tribunal recognised that it has to consider the interests of justice to both sides and any prejudice suffered by both sides."

The Tribunal went on to consider the overriding objective and they considered that any prejudice to the Applicant in refusing the postponement had to be set against prejudice to the Respondent in the considerable delay and the further expense caused by a postponement. On balance, and in particular taking into account the Applicant was still employed by the Respondent, which emphasised the need to resolve their dispute as expeditiously as possible, the Tribunal decided that the just decision was to refuse the postponement request and proceed with the hearing.

11. In our judgment, the fact that the actions of the relatively newly appointed instructing solicitors of the Appellant played little part in the findings made by the Tribunal does not vitiate them. It was a decision which the Tribunal was entitled to come to on the facts before it; we note in passing, that no application to this Tribunal was made for an adjournment at any stage during the Hearing. It must be remembered that permission was given to the Appellant to renew the application at the start of the hearing but no application here was then made.
12. In the circumstances the appeal against the refusal of adjournment cannot succeed and we dismiss that ground of the appeal.
13. In his submissions this morning, Mr Short has sought to introduce us to certain passages from text books which were not before the Tribunal below but were put into what was called an "agreed bundle" together with the skeleton arguments. He has sought to introduce them into his submissions to suggest that a passage in a recent decision in Morgan v The Staffordshire University [2002] IRLR (190) of Lindsay P, was made per in curium (i.e. wrongly). This was because it refers to a section of WHOICD and there are other versions to it which suggest that what the President referred to was wrong. He also submitted that in paragraph 20 of the judgment contained a statement of law which was obiter, i.e. not crucial to the decision. In paragraph 20 of that decision the President and his colleagues said something which is not in dispute:-

"We have to limit the view of our evidence to that adduced at the hearing as it could and should have appeared to the tribunal at the hearing. Whilst the words 'anxiety', 'stress' and 'depression' could be dug at intervals out of the copies of the medical notes put before the tribunal, it is not the case that their occasional use, even by medical men, will, without further explanation, amount to a proof of a mental impairment within the Act, still less as its proof as at some particular time."

It is the first sentence rather than the second on which we rely.

14. At a hearing from an Appeal Tribunal we are limited to considering the evidence which was before the Tribunal. What in fact the Appellant's Counsel is attempting to do is introduce fresh evidence which was not before the Tribunal; unless an application is properly made to introduce that evidence before the hearing, it is inappropriate for us to look at it. Counsel has submitted that because his opponent has had his skeleton argument for three weeks and the documents in the bundle were included, the Respondent's Counsel is not at a disadvantage. That is immaterial because it is one thing for something to be signalled in an argument, it is quite another for a party to have permission to bring in evidence which was not before the Tribunal below. In our judgment it would be quite wrong for us to allow the evidence which is not about the Appellant herself but text book evidence which could have been put before the Tribunal below to be put before us now as additional evidence in the case on the matters which we have to decide on appeal. In the circumstances we will not allow the Appellant to introduce this extra evidence.
15. The important issue to which we now turn is whether the Tribunal properly dealt with the main application before them. That was to decide whether the Applicant was a disabled person within the terms of the Disability Discrimination Act 1995. Before discussing the submissions which have been put before us, we mention that it is helpful if the Representation before an Employment Tribunal is set out on the first page of extended reasons rather than for those reading the decision, to have to read the body of it to find out what the representation was, we would respectfully remind the Tribunal, that the President of the Employment Appeal Tribunal is, and always, I suspect, will be, a High Court Judge rather than a Circuit Judge when he comes to mention his name in the body of the text.
16. The issue before us is really whether the Tribunal has erred in its finding. Mr Short has lengthened this case, estimated for half a day, somewhat by attempting to introduce to us evidence which was not below and which we have not therefore considered. His attempt was made to support the submission that paragraph 9 of the Tribunal's findings were wrong. Paragraph 9 of the extended reasons reads thus:-

"The first hurdle which an applicant has to surmount in the case of mental impairment is to satisfy a tribunal that the mental impairment is a clinically well-recognised illness. (He says that is not what the Act actually says and it goes on). Guidance as to the definition indicates that it is very likely that such an illness would be contained within the WHOICD World Health Organisation ICD which he called the IC10 list of illnesses, we will call that the WHO list."

17. Notwithstanding his strong and persistent submissions, it is very clear to us that the Tribunal did do what it is required to do under the Act, given the guidance from the case of Morgan v The Staffordshire University [2002] IRLR 190. That decision was reported in March 2002, the hearing of this was in May 2002. Lindsay P. set out in some detail the provisions of the Act. Paragraph 9 of the judgment states:-

"Section 3 of the DDA enables the Secretary of State to give guidance about matters to be taken into account on a number of issues likely to arise in disability discrimination cases, guidance which tribunals in some cases are obliged to take into account. Whilst the nature of mental impairment is not, in terms, one of the issues so described, the guidance issued by the Secretary of State on 25 July 1996 (after he had laid a draft of it before Parliament) included, as paragraph 12-15:-

'12. Physical or mental impairment includes sensory impairments, such as those affecting sight or hearing.

13. Mental impairment includes a wide range of impairments relating to mental functioning, including what are often known as learning disabilities (formerly known as "mental handicap"). However, the Act states that it does not include any impairment resulting from or consisting of a mental illness unless that illness is a clinically, well-recognised illness (Sc.1, para. 1).

14. A clinically well-recognised illness is a mental illness which is recognised by a respected body of medical opinion. It is very likely that this would include those specifically mentioned in publications such as the World Health Organisation's International Classification of Diseases.

15. The Act states that mental impairment does not have the special meaning used in the Mental Health Act 1983 or the Mental Health (Scotland) Act 1984, although this does not preclude a mental impairment within the meaning of that legislation from coming within the definition in the Disability Discrimination Act (s.68)'

Whilst it may be debated whether a tribunal is bound to accept the guidance there given, it plainly cannot be wrong to accept it. Accordingly, in general there will be three or possibly four routes to establishing the existence of 'mental impairment' within the DDA, namely:

(i) proof of a mental illness specifically mentioned as such in the World Health Organisation's International Classification of Diseases ('WHOCD');

(ii) proof of a mental illness specifically mentioned as such in a publication 'such as' that classification of very wide professional acceptance;

(iii) proof by other means of a medical illness recognised by a respected body of medical opinion.

A fourth route, which exists as a matter of construction but may not exist in medical terms, derives from the use of the word 'includes' in para.1(1), Schedule 1 to the Act. If, as a matter of medical opinion and possibility, there may exist a state recognisable as mental impairment yet which neither results from nor consists of a mental illness, then such state could be accepted as a mental impairment within the Act because the statutory definition is inclusive only, rather than purporting to exclude anything not expressly described by it. This fourth category is likely to be rarely if ever invoked and could be expected to require substantial and very specific medical evidence to support its existence."

The first sentence of paragraph 10 is also pertinent:-

"It is against that legislative background that the tribunal had to determine whether Mrs Morgan (the Appellant there) was at any relevant time a disabled person. As for whether whatever she was suffering from had 'a substantial and long-term adverse effect on [her] ability to carry out normal day-to-day activities', those being other necessary ingredients before a finding of disability can be made within s.1(1) of the DDA, the tribunal held that if there had been mental impairment they would have held those other components to have been present."

18. It is quite apparent from reading the careful Extended Reasons promulgated on 19 June 2002, some time after the one day hearing, that in paragraph 4 of the decision the claim of the applicant is set out fully and fairly. In the second sentence of paragraph 4, the Tribunal said this:-

"However, the difficulty for the tribunal was to decide whether the mental impairment resulted from or consisted of a clinically well-recognised illness."

This very important sentence follows:-

"The applicant's representative asked the tribunal to consider the World Health Organisation's International Classification of Diseases stating that it was her belief that the applicant's disability amounted to Recurrent Depressive Disorder, within F33, or Depressive Episode, in F32."

That is the way the Tribunal was invited to meet to consider the evidence by the representative by the Appellant. It is now said that that was a wrong invitation. It is not open to a party to ask a Tribunal to consider a case in one light and, when it has done what was requested, to complain that the Tribunal took a step which was sought.

19. The remainder of paragraph 4 which extends to well over a page, examines in some detail, various medical reports from various doctors whom she had seen about the various medical reports. In the middle of paragraph 4:-

"There was no reference to a diagnosis any more specific than depression in relation to the period in which the applicant claims (and that was between 1999 and 2001)."

The Reasons refer to the medical notes of the Appellant's GP and consider the evidence of a Dr Gwinner, (who saw the Appellant at the request of the Respondent) and continue:-

"Dr Gwinner had seen the applicant at her home, and his opinion included a statement that the applicant had suffered recurrent depressive illness since 1969 and that this had been treated psycho-therapeutically and with psycho-tropic drugs. He gave details of aetiological factors in her illness, including considerable emotional deprivation in childhood and a personality structure characterised by traits of independence and obduracy existing in parallel with great personal sensitivity and the need to fight her corner persistently and unremittingly. These characteristics, by her own admission, make it difficult for her to manage concomitant physical illnesses including hypthyroidism, gynaecological problems resulting in hysterectomy, arthralgia and mammary cysts. Dr Gwinner also sent a reply to a question whether the applicant fulfilled the criteria for inclusion under the Disability Discrimination Act 1995 during her period of suspension. His statement was:

"I am afraid I am unable to give you an opinion about this, as I had not met with her at that time and therefore I would have no evidence to base my opinion upon, which would in any case be retrospective.""

Further reference was made to other medical evidence of the Appellant, including that of a friend who had helped her with counselling, Professor Stephen Wright. He had given evidence at an earlier appeal hearing, giving his opinion about her state of mind and her recent problems. He had stated:-

"… she (the applicant) did not present with a mental illness that I could see."

Having referred to an issue determined by consent between the parties, the Extended Reasons considered the issue before them in these terms:-

"7. The burden of proof is upon the applicant to show that she is a disabled person. The tribunal have to take into account the 1995 Act, including Schedule 1 of that statute, plus the guidance by Code of Practice relating to the definition of disability.

8. The tribunal heard evidence from the applicant herself and was also referred to a number of documents, many of which came from medical experts. The applicant's case was that she suffered from a mental impairment."

Paragraph 9 of the Extended Reasons is set out in paragraph 16 of this judgment.

Paragraph 10 commences:-

"The tribunal did not have before it any expert evidence obtained by the applicant's representatives relating to whether she suffered from a clinically well-recognised illness. Miss Parkinson, for the applicant, referred the tribunal to the applicant's medical notes, to letters from her GP and another doctor, Dr Davis, comments by a Professor Stephen Wright, and also to a medical report which the tribunal did have before it from Dr Gwinner, Consultant Psychiatrist. He had been instructed by the respondent (but not in relation to this hearing). It was Miss Parkinson's submission that the applicant suffered from clinical depression, a clinically well-recognised illness. It was her view (and this must mean her submission) that this illness came within the WHOICD, under Category F32 (Depressive Episode) and/or F33 (Recurrent Depressive Disorder). She invited the tribunal to look at all the evidence and to make its decision whether the applicant's illness came within these categories…….."

(Reference is then made to authorities cited by Miss Parkinson):-

"Both Miss Parkinson and Mr Scott, for the respondent, submitted that the case of Morgan v The Staffordshire University [2002] IRLR 190 was an important case for the tribunal to consider."

"Mr Scott, for the respondent, did not produce any evidence-in-chief, but after cross-examining the applicant referred the tribunal to the documents, suggesting that there were elements of inconsistency, reference to other potential problems (such as stress), which were not necessarily depression, and suggested that it could be said that the applicant's problems were caused by a personality disorder rather than any kind of depression."

In our judgment in those paragraphs, the Tribunal well set out in summary the submissions which had been put before them.

20. Reference was then made to a short holding in Morgan.

"'clinical depression', without more, is insufficient. The WHOICD has no such simple category."

Within paragraph 19, the President's judgment provided:-

"Even so, doubt remains because the WHOICD suggests the need (for example, under 'Generalised anxiety disorder') for primary symptoms to be expected most days and usually for months and (for 'Post-traumatic stress disorder') 'there must be repetitive, intrusive recollection or re-enactment of the event in memories, daytime imagining or dreams. Conspicuous emotional detachment, numbing of feeling … are often present but are not essential for the diagnosis.' If what is being attempted is a claim to fall within a WHOICD category, then 'clinical depression' without more is insufficient. The work has no such simple category."

21. The Tribunal concluded that, prior to the case of Morgan, it might have been prepared to conclude that the Appellant had proved her case but it believed that it interpreted Morgan in the correct way. The judgment continued:

"The Tribunal has to find on the balance of probabilities that the Applicant suffered from a mental impairment which is a clinically well-organised illness. It may be that if the Applicant had produced an expert's report guiding the Tribunal as to the type of illness from which the Applicant suffered (and whether it was contained within the WHOICD and if so where), the Tribunal would have made a different decision. Therefore, with a certain regret, the Tribunal concluded unanimously that the Applicant has not met the burden of proof to show that she is a disabled person within the Act."

22. In our judgment the Tribunal carefully considered, not only the salient holdings in Morgan but also those in the Act. It was, in our view, correct in saying, as it did in paragraph 13 with regret, that it was likely that the failure of the Appellant to attend might have been because of error by her representatives in not providing appropriate medical reports for the hearing.
23. Mr Short has attempted to submit that the Tribunal should have looked at other available categories other than the WHOICD. Those were not referred to the Tribunal; it was not appropriate therefore for that submission to be made by Mr Short. He also submitted in one form or another that the Tribunal had misdirected itself and, indeed, that its decision was perverse. Our firm conclusion that having properly considered the evidence before it and the submissions made on behalf of the Appellant, the Tribunal reached an appropriate conclusion. The decision is not one which discloses an error of law.
24. In those circumstances we dismiss this appeal.