United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS SUSAN MACHIN (Of Counsel) Instructed by: Messrs Jack Thornley & Partners Solicitors 8 Warrington Street Ashton-under-Lyne Lancs OL6 6XP
For the Respondent	MR TERENCE RIGBY (Of Counsel) Instructed by: Messrs Neil Myerson Solicitors The Cottages Regent Road Altrincham, Cheshire WA14 1RX


 


MR RECORDER LUBA QC

Introduction

1. On 2 May 2002 the Employment Tribunal at Liverpool dismissed a complaint brought to it by Mr Boughton. His complaint was that the Respondent, TVR Engineering Ltd, had discriminated against him as a disabled person and, in particular, had failed to make reasonable adjustments to accommodate his disability in the workplace. That complaint was dismissed by the Employment Tribunal on the conclusion of a trial of a preliminary issue.
2. The Employment Tribunal unanimously concluded that Mr Boughton was not "disabled" within the meaning of the Disability Discrimination Act 1995 and, accordingly, his complaint of discrimination by reason of disability did not fall to be considered further. From that decision Mr Boughton appeals to this Tribunal. The single issue on the appeal is whether the Employment Tribunal gave proper, adequate and intelligible reasons to sustain its conclusion and, most particularly, whether it gave sufficient reasons for the present Appellant to understand why his case (that he was "disabled") had failed.

The relevant History

3. On 22 June 1995 (not 1996 as incorrectly mentioned at paragraph 3(a) of the Employment Tribunal's Extended Reasons) Mr Boughton suffered an industrial accident when working for other employers and his neck was injured. In November 1996 he joined the staff of the present Respondents. In November 1999 Mr Boughton complained to an Employment Tribunal that the Respondents were guilty of 'disability discrimination in employment' by not having made adjustments to reflect his disability. His complaint to the Employment Tribunal gave brief details of the 1996 injury which he contended had imposed limitations 'in my daily life and my employment'.
4. He claimed that the employers had failed to make reasonable adjustments in the workplace so as to accommodate his disability and, indeed, positively asserted that they had changed his duties in such manner as to cause him to be exposed to further injury at work. He claimed that just such an injury had occurred in October 1999. The employers put in a Notice of Appearance joining issue with the complaints made. They asserted, among other matters, that Mr Boughton had not been put at a disadvantage or risk, that any necessary reasonable adjustments had been made, and that it was denied that the October 1999 injury had occurred in the manner described by Mr Boughton.
5. The matter first came before the Employment Tribunal on 29 September 2000. That was to be the hearing of a preliminary issue to determine whether Mr Boughton was 'disabled' as defined for the purposes of the Disability Discrimination Act. At that first hearing Mr Boughton gave evidence. His evidence in chief was given by a reading of his witness statement supplemented by one or two further matters dealt with in questions. The Tribunal then watched a video film made by the Respondents on 17 November 1999 showing Mr Boughton out and about walking his dog. After that video tape had been shown Mr Boughton was cross-examined on his witness statement, on the content of the video, and on the other material in the bundle before the Tribunal. Written medical evidence was put in for the Applicant and for the Respondents. The medical reports received by the Tribunal are set out in our bundle in some six discrete documents.
6. However, the Tribunal also had, on the occasion of the first hearing, a seventh document, the second medical report of a Mr Varughese, an Orthopaedic Surgeon. The only "live" medical evidence given at the first hearing was the evidence given for the Respondents by a Mr Connolly, a Consultant Surgeon. Having received that evidence the Employment Tribunal then heard the submissions of the parties. Having done so it then directed that the hearing be adjourned in order that the Respondents' medical expert Mr Connolly should consider certain X-rays earlier taken of Mr Boughton's neck and/or upper spine. In the event there was an inordinately long delay and the hearing did not resume until 2 May 2002. It transpired that the relevant X-rays had not been obtained. On this second day of hearing the Respondents called their medical expert, Mr Connolly, and he shortly gave further evidence. After, or perhaps before, his evidence further submissions were made to the Tribunal by both parties.
7. The Employment Tribunal then announced its conclusion which was Mr Boughton had failed to establish that he was a "disabled" person and it gave summary reasons there and then. We have before us as, a result of the direction of this Tribunal, the Chairman's notes of the evidence taken. We also have, of course, the Extended Reasons subsequently provided by the Employment Tribunal itself. Those were sent to the parties in July 2002. The structure of those Extended Reasons is that firstly they set out in chronological order the findings of fact in relation to the history. The Tribunal at paragraph  4 directs itself to the relevant law and at paragraph 5 states its conclusions.

The Law

8. Before dealing with the details of this particular appeal, it is right to set out the relevant law. Firstly, the test of disability for the purposes of the Disability Discrimination Act. The Tribunal were engaged in the task of determining as a preliminary issue whether the definitions of "disability" and "disabled person" set out in Section 1 of the 1995 Act were satisfied. Subsection 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.

(2) In this Act 'disabled person' means a person who has a disability."

That is the first piece of law relevant to this appeal.

9. The second, is the duty upon the Employment Tribunal to give reasons for its decision. The statutory requirement to that effect is contained in paragraph 12 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001. The extent of the duty to give reasons is helpfully reviewed in two decisions which have been put before us. Those decisions are both of the Court of Appeal and are respectively Meek v Birmingham City Council [1987] IRLR 250 and Anya v The University of Oxford [2001] EWCA Civ. 405.

The Appeal

10. Following a Preliminary Hearing conducted before this Employment Appeal Tribunal in November 2002, an amended Notice of Appeal was submitted for the Appellant as directed by this Tribunal. That amended Notice of Appeal contains a single ground of appeal. That ground can be given the convenient label 'inadequate reasons'. That Notice of Appeal particularised the alleged inadequacy in the Tribunal's reasons. It was met by a Respondent's Answer which, having set out detailed assertions that the reasons given were adequate reasons, concludes with a summary contention that the reasons given 'though pithy were sufficient'. The parties have been represented on the appeal by Counsel and we are grateful to both of them for their skeleton arguments (provided well in advance and in clear form) and for their oral submissions.

The Submissions

11. Ms Machin for Mr Boughton adopted the structure of her skeleton argument. She developed it in her oral submissions. It was she who provided us with a copy of the second Varughese report which had been missing from our bundle. She submitted that the Chairman's notes of evidence, which we had seen in advance, were very brief but she made no application to amend the Notice of Appeal to attack any alleged error of law flowing from their brevity. Turning to the Employment Tribunal's decision, she submitted that although an Employment Tribunal did not have to resolve every minor dispute of fact nevertheless an Employment Tribunal should in its reasons give an account of the 'story' and find the relevant facts. It should then reach a reasoned conclusion based upon those findings. She asserts that the specific failure in the instant case was to properly set out and deal with the Applicant's case as it was put to the Tribunal. She contends that his case is not set out at all in the Extended Reasons which themselves make no reference to, for example, the Applicant's witness statement. She complains that the Extended Reasons give no account of his oral evidence.
12. Further, Ms Machin criticises the Employment Tribunal for failure to make any reference at all to the circumstances of the lengthy delay in the resumption of the adjourned hearing. Finally, she submits that Mr Boughton could not tell from the decision why he had lost. She took us to the passages in the medical reports demonstrating such support as they had given to Mr Boughton's case as she submitted that the reasons given by the Tribunal had failed to show why this material had been rejected.
13. Mr Rigby for the Respondent was content to adopt Ms Machin's submission on the law relating to the extent of the duty to give reasons. That was all that was necessary since the principles derived from the Meek and Anya cases were agreed. Mr Rigby's submissions were to the effect that the Employment Tribunal had in this case discharged their duty in relation to the giving of reasons. He took us to the Extended Reasons. By reference to them, he submitted that the Employment Tribunal had made detailed findings of fact, referred to all the medical evidence and directed themselves properly according to law. He submitted that although there were areas in which the reasons were not as ample as they might have been, in particular in relation to setting out the Applicant's case, they were nevertheless sufficient. In the event that we were to be against him on the "reasons" point he reserved a submission as to the course we should take if we found that the "inadequate reasons complaint" were made out.

Conclusion

14. We are unanimously of the view that this Employment Tribunal, in this particular case, fell short in its duties to give proper, adequate and intelligible reasons for its decision. That is, most particularly, in two distinct respects.
15. First, the Employment Tribunal failed to meet its obligations in respect of its handling of the Applicant's case in its Extended Reasons. It is not possible to properly deduce from the Extended Reasons what the employee's case was. It was, after all, the Preliminary Hearing of his claim that he was a disabled person. The Extended Reasons contain no account as to what the limitations on his daily life or ability to work were experienced by him as described in his own evidence. Some material is contained in the Chairman's notes in this regard but nothing substantial is carried into the Extended Reasons.
16. There is no reference in the Extended Reasons to Mr Boughton's witness statement or its content or the way in which his oral evidence was given. It is suggested by Mr Rigby that there are certain passages in the Extended Reasons at which short references are given to parts of what the Applicant said. He drew our attention in particular to such passages as those contained in the third sentence of paragraph 4. Indeed, if one were to go through the Extended Reasons on the basis Mr Rigby invited, it is possible here and there to glean some strands as to what the Applicant's case was. However, we accept Ms Machin's submission that it was necessary for the Tribunal to set out the Applicant's case clearly, albeit in summary form, and to give their response to the evidence as they received it.
17. Mr Rigby candidly put to us that a bystander observing these proceedings would plainly have understood that the employer's case was that the Applicant was exaggerating his symptoms or, perhaps inventing them, and that there was no objective evidence sustaining them. If that was transparently the Respondent's case there is no statement to that effect in the Extended Reasons. If that case succeeded because the Employment Tribunal agreed with it, and did not accept Mr Boughton's own evidence or find that evidence credible, it was in our view incumbent upon them to say so.
18. Second, in our judgment the Tribunal fell short in dealing in its Extended Reasons with the medical evidence that led to its conclusion in this case. At this point it is important to go to paragraph 5 of the Extended Reasons which are in these terms:

"We decided that the Applicant was not disabled for the purposes of the Act. Mr Connolly alone gave evidence before us: he was cross-examined; he gave his evidence with impressive clarity and firmness. His general position was that there was no reason to discern an inability to carry out day-to-day activities. The applicant's ease of movement apparent on the video film could not be accounted for, he said, by the medication. We accepted what he said. His opinion was largely confirmed by other parts of the medical evidence. Much in the medical reports the applicant cited in his support was based on his description of his symptoms. … The best view of the medical evidence seemed to us to lead to the finding that the applicant was not disabled for the purposes of the Act and accordingly his complaints must be dismissed."

Although, as that passage indicates, only Mr Connolly gave live evidence there was a wealth of written medical reports before the Employment Tribunal. It is noticeable that although the Tribunal state that Mr Connolly's opinion was 'largely confirmed by other parts of the medical evidence' the passage cited in paragraph 5 does not deal at all with the second report of Mr Varughese. Indeed, the only mention of that report is given at paragraph 3(n) of the findings of fact and that simply records that the second medical report had not been based on any further medical examination. But in his second report Mr Varughese was able to provide the Employment Tribunal with what was then an up to date professional opinion which commented not only on Mr Connolly's own report but also on the video which Mr Varughese had seen. Mr Varughese, in his second report, found no cause for concern with his previous medical opinion was caused either by Mr Connolly's report or by the video tape. In those circumstances it is extraordinary that paragraph 5 of the conclusions does not mention, at all, Mr Varughese's second report. If the Tribunal rejected his medical evidence they do not say why. However impressive a witnesses Mr Connolly may have been, it was incumbent on the Employment Tribunal in our judgment to say why it rejected the medical opinion expressed in the most up-to-date report before them. Certainly it is difficult to understand how, having read and considered that report, they could have found as they did find that the opinion of Mr Connolly was 'largely confirmed by other parts of the medical evidence'. This is, as it has always been, an aspect of the "reasons" challenge. What is said by Ms Machin on behalf of Mr Boughton is that in relation to this passage and the handling of the medical evidence it is not possible for Mr Boughton to understand why it was that his claim did not succeed.

19. For those two reasons we are satisfied that this Tribunal's decision in its Extended Reasons fell short of the obligation to provide reasons as required by the relevant rule and as explained in the Court of Appeal judgments to which we have earlier referred. Having given the parties an indication that this was the conclusion we had reached we invited submissions as to what course should then follow. Ms Machin invited us to allow the appeal and remit the matter for rehearing.
20. Mr Rigby, however, submitted that on the material which had been available to the Tribunal the Tribunal's conclusion was 'plainly and unarguably right'. He submitted, in effect, that a remission to another Tribunal would be a waste of time because only one conclusion (`i.e. the dismissal of the complaint) was the likely or reasonable outcome. In support of his proposition, that we should dispose of the appeal in that way, Mr Rigby took us to the relevant passages in the judgments Dobie v Burns International Security Services [1984] 3 All ER 333 and Bache v Essex County Council [2000] 2 All ER 847 which are decisions of different divisions of the Court of Appeal. They certainly provide sufficient authority for his proposition that if we were satisfied that the Respondent's case was 'plainly and unarguably right' (that the complaint ought to have been dismissed by the Employment Tribunal) then we should not grant the remedy sought by the Appellant but should instead uphold the outcome of the Tribunal hearing below even if we cannot sustain the reasons as the Tribunal furnished them.
21. Having heard those submissions we then, at the invitation of Mr Rigby, not opposed by Ms Machin, viewed the video tape material which had been before the Tribunal. We reminded ourselves that the employee had provided an explanation that on the date of that video he had been on or taking medication or receiving medical assistance. The contention for Mr Rigby is that the video evidence, taken together with the medical evidence which was before the Tribunal, puts the matter beyond doubt and that on any view no reasonable Tribunal properly directing itself could have done other than find that Mr Boughton was not a disabled person.
22. We have carefully considered that submission just as we have carefully considered the medical evidence, the video and now, additionally, the second medical report of Mr Varughese, who like Mr Connolly, had seen the video and was able to give a medical opinion upon what was seen. We do not accept Mr Rigby's submission that all this material leads to only one answer. Having reached that conclusion, we take the view that we should say nothing more about the content of the video or the content of the medical evidence. That is because we judge that the proper course is for this complaint of disability discrimination to be remitted for rehearing by a differently constituted Tribunal. It will be for that Tribunal to weigh such medical evidence as it receives and to view the video tape if it is before that Tribunal. It will then be for that Tribunal to reach its conclusions and to give adequate, proper and intelligible reasons for whatever conclusions it reaches. In sum, this appeal is unanimously allowed.