United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D BERKLEY QC and MR N SIDDALL (of Counsel) Instructed by: Edwards Abrams Doberty Solicitors 125/131 Picton Road Wavertree Liverpool
For the Respondent	MR C QUINN (of Counsel) Instructed by: Oldham Metropolitan Borough Council Legal and Democratic Services Civic Centre PO Box 160 West Street Oldham


 


SUMMARY


 


THE HONOURABLE MR JUSTICE SILBER

I Introduction

1. This is an appeal from the decision of the Employment Tribunal sitting in Manchester and which was promulgated on 16 June 2003, in which the Employment Tribunal determined at the end of a preliminary hearing that David John Booth ("the appellant") was not a "disabled person" for the purposes of the Disability Discrimination Act 1995 ("the 1995 Act"). This meant that his complaint pursuant to the Act against his former employers Oldham Metropolitan Borough Council ("the respondent") was dismissed.
2. The sole issue raised on this appeal is whether there was an error of law in the decision of the Employment Tribunal that the Appellant was not a "disabled person" for the purposes of the 1995 Act. This raises an interesting point about what has to be established by a person claiming to be disabled in relation to the effect of his or her physical or mental impairment. The Appellant had originally sought to raise other issues, but they have now been abandoned.

II The Appellant's complaints to the Employment Tribunal

3. The Appellant had been employed by the Respondent since 1973. At the material time, his job description was that of "Member and Electoral Services Manager". In late 1999, the Appellant invoked the grievance procedure against his manager and he claims that as a consequence of the Respondent's conduct in connection with his grievance, he became ill with work-related stress and depression, which rendered him unfit for work on about 6 April 2000.
4. The Appellant contended that his condition had improved by August 2001 to the extent that he contemplated returning to work in September 2001 but that on 31 August 2001 he was dismissed.
5. In his Originating Application, the Appellant complains that he was unfairly dismissed and that matter has been adjourned by the Employment Tribunal pending the determination of his disability discrimination claim. He also made disability claims on the grounds (i) that he was a "disabled person", (ii) that by his dismissal on 31 August 2001, he had been treated less favourably because of his disability, (iii) that the Respondent had failed to take account of his medical condition and (iv) that the Respondent had failed to consider or to implement reasonable adjustments to the Appellant's work, which could have facilitated the Appellant's return to work. The Appellant also made other claims which are not relevant to the present appeal.
6. In its Notice of Appearance, the Respondent did not admit that the Appellant was a "disabled person", but it denied discrimination and stated it had been ready, willing and able to make appropriate adjustments but that the Appellant had been unwilling to co-operate with such adjustments.
7. At the hearing, the Respondents conceded that the Appellant had a "mental impairment" but they denied that it had either a "substantial" or "long-term adverse effect on the Appellant's ability to carry out normal day-to-day activities". That was the issue which had to be resolved on the hearing of the preliminary issue. It is now appropriate to explain the statutory background and the Employment Tribunal's reasoning.

III The Statutory Background and the Employment Tribunal's Reasoning

8. Section 1 of the 1995 Act provides brief definitions of "disability" and "disabled person" as follows:

"(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".

9. In Schedule 1, there is a helpful definition, which is that:

"(1) "Mental impairment" includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness".

10. As we have explained, the Employment Tribunal was not faced with the issue as to whether or not the Appellant suffered from a mental impairment because the Respondent conceded that he did so suffer from such an impairment, namely an adjustment disorder or reactive depression (ICD10F43.23) and a panic disorder (ICD10F41.0). However, the fact of a mental impairment is not enough to bring an applicant within the ambit of Section 1 of the 1995 Act. It was also incumbent upon the Appellant to establish on the balance of probabilities, that that mental impairment in the words of Section 1 of the 1995 Act "has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".
11. The 1995 Act provides further guidance on the meaning of these requirements. Paragraph 2(1) of Schedule 1 of the 1995 Act provides that:-

"(1) The effect of an impairment is a long-term effect if -

(a) it has lasted at least 12 months;

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

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

12. Paragraph 4 of Schedule 1 of the 1995 Act provides that:

"(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 –

mobility;

manual dexterity;

physical co-ordination;

continence;

ability to lift, carry or otherwise move everyday objects;

speech, hearing or eyesight;

memory or ability to concentrate, learn or understand; or

perception of the risk of physical danger".

13. Section 3 of the 1995 Act empowers the Secretary of State to issue guidance upon matters to be taken into account on the disability issues. By Section 3(3) of the 1995 Act, it is provided for the purpose of determining the substantial and long-term conditions, a Employment Tribunal shall take such guidance into account "which appears to it to be relevant".
14. The Secretary of State issued such guidance (Statutory Instrument No. 1996/1996) ("the Guidance") on 25 July 1996 under Section 3 of the Act. Paragraph A1 of The Guidance states that:

"The requirement that an adverse effect be substantial reflects the general understanding of "disability" as a limitation going beyond the normal differences in ability which may exist among people. A "substantial" effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects. A "substantial" effect is one which is more than "minor" or "trivial".

15. At paragraph 13 of its Extended Reasons, the Employment Tribunal considered and rejected the contention that the Appellant's mental impairment has had a long-term effect on his ability to carry out normal day-to-day activities. In front of the Employment Tribunal the Appellant relied on many factors, but in front of this Appeal Tribunal he relied solely on "mobility" and "ability to concentrate".
16. The Employment Tribunal also considered the second way in which the claim was advanced under the 1995 Act, namely by reference to Paragraph 2 of Schedule 2 to the 1995 Act, which provides that:

"(1) The effect of an impairment is a long-term effect if (a) it has lasted for at least 12 months…….

(2) Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect recurs".

17. Having found that the effect of the impairment relied upon did not last 12 months, the Employment Tribunal also dismissed that submission [Extended Reasons paragraph 15].
18. Finally, the Employment Tribunal rejected a submission based on paragraph 6(1) of Schedule 1 to the 1995 Act, which provides that:-

"(1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect".

19. The Employment Tribunal concluded that on the evidence before it "we are not satisfied that the applicant's mental impairment would have been likely to have a substantial adverse effect on his ability to carry out normal day-to-day activities but for the fact that measures were being taken to treat or correct it": paragraph 15.

IV The Grounds of Appeal and the Issues

20. Mr. David Berkley QC for the Appellant contends that the decisions of the Employment Tribunal contains errors of law, namely that the Employment Tribunal:-

(a) was perverse in not finding that the Appellant's mental impairment "had a substantial and long-term adverse effect" on two of his "normal day-to-day activities", namely his "mobility" and his "ability to concentrate" ("The Perversity Issue");

(b) imposed too high thresholds for establishing that the Appellant's mental impairment "had a substantial and long-term adverse effect" on two of his "normal day-to-day activities", namely his mobility and his power to concentrate ("The Threshold Issue");

(c) failed to apply properly Paragraph 6(1) of Schedule 1 to the 1995 Act and so ignored the consequence of the medication taken by the Appellant with the consequence that the Employment Tribunal ought to have found that the Appellant's mental impairment "had a substantial and long-term adverse effect" on two of his "normal day-to-day activities", namely his mobility and his power to concentrate ("The Medication Issue");

(d) ought to have invoked paragraphs 2(1) and (2) of Schedule 1 of the 1995 Act so as to find that the impairment of the Appellant had a "long-term effect" on two of his "normal day-to-day activities", namely his mobility and his power to concentrate ("The Paragraph 2(2) Issue").

21. Mr. Quinn for the Respondent contends that the Employment Tribunal not only reached a decision open to it in the light of the evidence but also that its actual decision was the only decision open to it on the facts.
22. It is convenient now to mention three matters that are common ground between the parties. First, it is accepted that the onus of proof is on the Appellant, who has to prove that he was a "disabled person" within the meaning of the 1995 Act. Second, the time at which this has to be proved was when the Appellant was dismissed, which was on 31 August 2001. Third, the Employment Tribunal dealt with all the submissions that were raised by counsel for the Appellant and those included many submissions referring to the Guidance.
23. We consider that the best way of resolving the issues is by considering first in turn each of the matters that have to be established before the Appellant can be regarded as "a disabled person" for the purposes of the 1995 Act. Mr. Berkley accepts that that the only " normal day-to-day activities" which the Appellant can refer to in support of his contention that he is "disabled" are those set out in Paragraph 4 of Schedule 1 of the 1995 Act. He contends that the only activities in that Schedule that were affected by the Appellant's mental impairment were his "mobility" and his "ability to concentrate". Therefore we will focus our attention on the submissions of counsel and the evidence relating to them.
24. We propose to consider first if the Appellant can establish that the Employment Tribunal erred when it dealt with the contention that the Appellant's mental impairment had "a substantial adverse effect on his ability to carry out his normal day-to-day activities" and those activities related to the Appellant's "mobility" and his "ability to concentrate". If the answer to that question is in the affirmative, we will then move on to consider secondly if the effect was "long-term" within the meaning of the 1995 Act.

V Did the Appellant's mental impairment have a "substantial adverse effect on [the appellant's] ability to carry out normal day-to-day activities"?

25. We will consider in turn the two day-to-day activities relied on by the Appellant, namely "mobility" and "ability to concentrate".

"Mobility"

26. The Appellant's case is that there was adequate evidence to require the Employment Tribunal to conclude that the Appellant's mental impairment had a substantial and long-term adverse effect on his mobility. In paragraph 6 of the Extended Reasons, the Employment Tribunal noted that the Appellant said that he suffered from claustrophobia, that he was unable to take part in activities such as taking his children to school or swimming or even bowls, that his wife had explained that the Appellant would not drive the car at the early stage of his illness and even at the time of the statement, he only drove on short journeys.
27. Evidence was given that on one occasion, when the Appellant went on a train in order to attend an appointment in Macclesfield, the train closed its door and began to move when the Appellant then became incoherent, swearing and shouting "Let me off, I need to get off, I want to get off". The Appellant was not then in control of his own actions with the result that his wife could not help him. Eventually, when the train came to a stop, the Appellant flung himself onto the platform.
28. The Employment Tribunal in their Extended Reasons drew attention to the Guidance and in particular where it stated that it would be reasonable to treat as having a "substantial adverse effect", the inability of a person to travel a short distance as a passenger in a vehicle, while it would not be reasonable to regard as having "a substantial adverse effect" the inability to travel in a car for a journey lasting more than two hours without discomfort (Paragraph C.14 of the Guidance). The Employment Tribunal noted that there was no evidence that the Appellant at any stage was unable to travel as a passenger in a vehicle with the exception of the train incident, which was a one-off incident. The Employment Tribunal rejected the idea that the Appellant's reluctance to make social contact, claustrophobia or reluctance to use lifts established the appellant's case on the mobility issue. We do not consider that the Employment Tribunal can be criticised for concluding on that evidence that there had not been a substantial adverse effect on the Appellant's ability to carry out normal day-to-day activities in respect of his mobility or at all.
29. Mr. Berkley contends that the Employment Tribunal erred in not taking account of the Appellant's incontinence on the mobility issue. Clearly, if the Appellant had been incontinent, that might have been a relevant factor but the evidence does not show that the Appellant suffered from incontinence. There is some evidence that the Appellant suffered from diarrhoea in March 2000, according to the report of Dr. J. M. Ansari, a Consultant Psychiatrist. In a letter of 19 April 2000 from Dr. Danielle Farrell, the family doctor of the appellant of 19 April 2000, there was a further reference to diarrhoea, nausea and stomach churning and also to the fact that the Appellant's panic attacks at night on public transport and in the car had improved. That material, together with other references to the appellant suffering from diarrhoea do not seem to go anywhere near showing any interference with the mobility of the Appellant. No evidence has been adduced to show how his episodes of diarrhoea effected his mobility.
30. The Appellant received treatment for his mental condition. This could be relevant because, as I have explained, Paragraph 6(1) of Schedule 1 to the 1995 Act requires an Employment Tribunal to ignore the effect of any measures that are being taken to treat or correct any substantial adverse effect on the ability of a claimant to carry out normal day-to-day activities. No evidence was adduced and no cogent submission was made that any measures which were taken or any treatment to correct or treat the mental impairment of the Appellant would have had any effect on his mobility.
31. In conclusion, we consider not only was the Employment Tribunal correct to conclude that the mental impairment suffered by the Appellant did not affect his mobility, but that there is a very good argument for saying that any contrary decision by the Tribunal on the mobility issue would be perverse.

"Ability to Concentrate"

32. Mr. Berkley contends that the Employment Tribunal failed to apply the correct test or to properly evaluate the evidence in relation to the Appellant's inability to concentrate for more than half an hour and so they reached a perverse finding. There are various references to the Appellant's difficulties in the medical notes and which are referred to in the Extended Reasons of the Employment Tribunal. On 10 March 2000, Dr. Naing wrote of the appellant that "his concentration and memory are very poor". On 22 March 2000, the Appellant's General Practitioner noted that he had "very poor concentration". In addition, a note made at the Initial Assessment Therapy Centre on 3 November 2000 records of the Appellant that "his short-term memory has been affected. He is unable to concentrate for long periods – maximum half an hour". There were other similar references in the medical reports.
33. The Employment Tribunal considered this evidence and also the Guidance on loss of concentration, which states at paragraph C.20 that it would be reasonable to regard as having a "substantial … adverse effect", the persistent inability to remember the names of familiar people, such as family or friends or the inability to adapt after a reasonable period to minor changes in work routine or the inability to write a cheque without assistance or considerable difficulty being experienced in following a short sequence, such as a simple recipe or a brief list of domestic tasks. This provision in the Guidance also notes that it would not be reasonable to regard as having a "substantial … adverse effect" matters, such as occasionally forgetting the name of a person such as a colleague or the inability to concentrate on a task requiring application over several hours, or the inability to fill in a long-detailed technical document without assistance.
34. The Employment Tribunal stated that there was no evidence that the concentration of the Appellant, whilst he was suffering from a reactive disorder, was worse let alone significantly worse than that of an average member of the population as a whole. It then concluded that the Applicant's mental impairment did not have a "substantial … adverse effect" on his ability to carry out normal day-to-day activities in relation to memory and concentration or at all.
35. Mr. Berkley attacks these findings. He points out that in Goodwin v. The Patent Office [1999] IRLR 4, Morison J giving the judgment of this Appeal Tribunal explained that "the focus of the attention required by the Act is on the things that the Applicant either cannot do or can only do with difficulty, rather than on the things that the person can do" [35]. The Employment Tribunal did precisely that when it considered what the Appellant could not do before it determined that there was no evidence before it which showed any loss of concentration or loss of mobility suffered by the Appellant had any "adverse effect on his ability to carry out normal day-to-day activities".
36. Another point taken by Mr. Berkley in respect of the loss of concentration claim is that the Employment Tribunal failed to take note of the requirement in Paragraph 6(1) of Schedule 1 of the 1995 Act, which, as we have explained, requires the Employment Tribunal to disregard the affect of any measures (such as medical treatment) being undertaken by the person concerned in determining whether the mental impairment has created an adverse effect on the applicant's ability to carry out normal day-to-day activities.
37. The Employment Tribunal considered this point and explained in paragraph 15 of its Extended Reasons that the Appellant had received a comprehensive package of pharmacological, psychological and social treatment, including anti-depressant medication, psycho-therapy, anxiety management and relaxant training. Dr. Ansari, the Consultant Psychiatrist, considered that the anti-depressants appear to have "considerably helped [the Appellant] by reducing the symptoms of depression, improving his sleep, concentration and a range of activities".
38. Having applied paragraph 6(1), the Tribunal then concluded in paragraph 15 of its Extended Reasons that there was no evidence before it as to what would have happened if the Appellant had not been prescribed anti-depressants and/or if he had not received the other medical treatments that he did not receive. The Employment Tribunal accepted that the anti-depressants improved the Appellant's ability to concentrate but it still was not satisfied that the appellant's mental impairment would have been likely to have a substantial adverse effect on his ability to carry out his normal day-to-day activities but for the medical measures, which were being taken to treat and correct it.
39. It is said by Mr. Berkley that this approach does not comply with the comment of Morison J in Goodwin (supra), when he explained that "the question is then whether the actual and deduced effects on the applicant's abilities to carry out normal day-to-day activities are more than trivial" [42]. We agree with Mr. Quinn that applying Morison J's test is precisely what the Employment Tribunal had done.
40. As we have already explained, the Employment Tribunal found that "there was no evidence as to what would have happened if the Applicant had not been prescribed anti-depressants and/or if he had not received the other medical treatment that he did receive". They accept that the anti-depressants would have improved the Appellant's ability to concentrate, but they concluded that they were not satisfied that the Appellant's mental impairment would have been likely to have had a substantial adverse effect on his ability to carry out normal day-to-day activities but for the fact that measures were being taken to treat or correct it.
41. In our view, there is no valid complaint about this approach for two reasons, both of which were explained by Mummery LJ (with whom the Vice-Chancellor and Wall J agreed) in Daniel McNicol v. Balfour Beattie Rail Maintenance Limited ([2002] EWCA Civ 1074). First, he explained that "the onus is on the applicant to prove the impairment on the conventional balance of probabilities" [26] and therefore it was for the applicant to show what would have happened if he had not been prescribed anti-depressants or received the other medical treatment which he received. He has failed to do so.
42. Second, Mummery LJ said that "it is not, however, the duty of the [Employment] Tribunal to obtain evidence or to ensure that adequate medical evidence is obtained by the parties" [26]. Thus, the Tribunal was quite entitled to reach the decision that it did in relation to the Paragraph 6(1) point.
43. Pausing at that stage, the Appellant has failed at the first obstacle of showing that his medical impairment had a "substantial .. adverse effect on his ability to carry out normal day-to-day duties". It therefore is not strictly necessary to deal with the second requirement, which is that adverse effects had to be "long-term", but as we have heard extensive arguments on it, we will briefly give our reasons, but they are briefer than they would have been if this was still a material issue.

"Long term adverse effect on [the appellant's] ability to carry out normal day-to-day activities"

44. The approach of the Tribunal was that even if they had found, which they did not, that the Appellant's impairment had a "substantial … adverse effect" on his ability to carry out normal day-to-day activities, they would not have found the effect to be "long-term" and none of the adverse effects upon which the Appellant relied lasted for at least 12 months prior to his dismissal on 31 August 2001, whether looked at separately or cumulatively. The conclusion of the Employment Tribunal was that the adverse effects relied upon by the Appellant only appear to have lasted for a period between February 2000 and November 2000, even though the Appellant was away from work from 6 February 2000 until his dismissal on 31 August 2001.
45. It is significant that on 15 November 2000, Dr. Naing noted that the Appellant did not show any evidence of depressions. The Employment Tribunal found that although after the applicant's dismissal there was a recurrence of some of the adverse effects, there was no evidence before the Employment Tribunal upon which it could properly find in November 2000 that it was likely that any adverse effects would occur and that finding has not been challenged.
46. Mr. Berkley attacks this reasoning and he points to a number of statements in medical reports which show that the Employment Tribunal erred. In looking at this evidence, it is vital that we bear in mind that the task of the Employment Tribunal was not to see if the medical or other evidence showed long-term adverse effects on the Appellant, but whether the evidence established "long-term adverse effect on his ability to carry out normal day-to-day activities" (s1 of the 1995 Act with italicisation added). It is the italicised words which are of importance because this very material evidence has to be adduced by the Appellant. Mr. Quinn contends correctly that it is not of any significance that the Appellant merely suffered long-term adverse effects without adducing evidence on its effect "on his ability to carry out normal day-to-day activities".
47. As we will show, the evidence relied on by the Appellant does not satisfy this requirement. On 21 August 2001, Dr. Dawn Black a Consultant Psychiatrist, reported that in June 2000 the Appellant was assessed and referred for anxiety management therapy and relaxation training. He continued to take anti-depressant medication, which was later increased.
48. In November 2000, the Appellant was not thought to have any depressive symptoms, although he remained somewhat anxious and by February 2001 he was no longer clinically depressed. By April 2001, the Appellant was considered to be coping well with no depressive symptoms but occasional panic attacks, which he was able to control much better than before [99]. On 12 July 2001, Dr. Denman, an Occupational Physician reported that the Appellant was still having specialist treatment but was feeling much better (119). On 15 August 2001, Dr. Black wrote that she had seen the Appellant, who felt able to cope with his problems and that "it would appear that he has made a complete recovery from the depressive illness". By 14 December 2001, it was reported that the Appellant, who by then had been dismissed, had been to an outpatient clinic and that he had lost his appeal and that he was awaiting an Industrial Tribunal hearing [118]. It was noted that the Appellant continued to exhibit stress-related symptoms, but it was not thought that there was any realistic prospect that things would improve until the Tribunal hearing was over.
49. On 30 August 2001, the Appellant was dismissed. None of the evidence to which I have referred or any other evidence gives any unequivocal indication that the mental condition of the Appellant had any "long-term adverse effect on his ability to carry out normal day-to-day activities". In those circumstances, there was ample evidence for the Employment Tribunal to conclude that the appellant's mental impairment did not have a long-term adverse effect on the two "normal day-to-day activities" relied upon, namely the Appellant's mobility and his power to concentrate.
50. The Employment Tribunal initially considered separately the questions of mobility and loss of concentration and other consequences relied upon by the Appellant in the Employment Tribunal. It then proceeded to consider these issues cumulatively before concluding in paragraph 12 of the Extended Reasons it was not satisfied that even taking all the matters complained of cumulatively, that they could be said to have had a substantial adverse effect on the Appellant's ability to carry out normal day-to-day activities. We consider that for the reasons already explained, the Employment Tribunal was also entitled to reach that conclusion, particularly in the light of the lack of evidence of the effect of the Appellant's mental condition on his ability to carry out the Paragraph 4 of Schedule 1 activities.
51. We must now consider the four issues to which we referred in paragraph 20 above.

VI The Perversity Issue

52. For the reasons that we have explained, the Employment Tribunal was entitled to reach the decision that it did and the Appellant fails on the perversity point, especially as the Court of Appeal have recently explained that "such an appeal would only succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal, on a proper appreciation of the evidence and the law would reach" (per Mummery LJ in Yeboah v. Crofton [2002] IRLR 634 [93]). The appellant's submissions fall a long way short on that point.

VII The Threshold Issue

53. Mr. Berkley contends that the Employment Tribunal invoked a new test by demanding a requirement that the Appellant's condition had to be such as to make his memory/concentration significantly worse than an average member of the population. He says that such a requirement does not appear in the Guidance nor in the 1995 Act.
54. It is correct that the Employment Tribunal concluded in paragraph 10 of the Extended Reasons that the Appellant's memory and concentration whilst he was suffering from a reactive disorder had been adversely affected. However, there was no evidence before it that his memory and concentration "was worse let alone significantly worse than an average member of the population as a whole". We do not consider that those comments are of critical relevance because the Employment Tribunal then quite correctly went on to conclude that the Appellant did not meet the statutory test as it specifically did not find that the Appellant's mental impairment "has had a substantial adverse effect on his ability to carry out his normal day-to-day activities in relation to. concentration or at all". In any event, as we have already explained, there is no evidence before the Tribunal to show that the appellant's mental impairment had a substantial effect on his ability to carry out such duties and thus the Tribunal were bound on the evidence before it to reject the contention that the Appellant had succeeded under Section 1. Thus, this point also fails.
    

VIII The Medication Issue

55. We have already explained in paragraphs 38 to 41 why the Appellant cannot succeed on the medication issue.
    

IX The Paragraph 2(2) Issue

56. Mr. Berkley complains that the Tribunal failed to consider the provisions of Paragraphs 2(1) and (2) of Schedule 1 of the Act. Although the Employment Tribunal referred to the first of these provisions, it did not specifically in its Extended Reasons refer to Paragraph 2(2), which provides that:-

"Where an impairment ceases to have substantial adverse effects on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to reoccur".

57. In our view, there was no material upon which the Employment Tribunal could have invoked this provision. As we have already explained, there was no evidence that the impairment did have "a substantial adverse effect on [the Appellant's] ability to carry out normal day-to-day activities". In those circumstances, Paragraph 2(2) has no relevance. As we have already explained, the Tribunal considered Paragraph 2(1) adequately.

X Conclusion

58. The more we listened to the evidence in this case, the more convinced we became that this appeal was really a disagreement with the Employment Tribunal's approach to the facts. In our view, the Employment Tribunal were quite entitled to reach the decision which it did, especially as there was inadequate evidence adduced by the Appellant on the effect of the appellant's mental impairment on his ability to carry out the two "normal day-to-day activities" relied on, namely his mobility and his power to concentrate. Thus, notwithstanding Mr. Berkley's clear and cogent submissions, this appeal must be dismissed.