United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS JANE RUSSELL (Of Counsel) As instructed by: Avon & Bristol Law Centre 2 Moon Street Stores Croft Bristol BS2 8QE
For the Respondent	MS REBECCA DENNIS (Of Counsel) As instructed by: Messrs MLM Solicitors Pendragon House Fitzalan Court Newport Road Cardiff CF24 0BA

SUMMARY

No substance in complaints about Chairman's decision on adverse effect on day-to-day activities. Reduced motivation did not prevent Appellant from carrying out activities.


 


HIS HONOUR JUDGE ANSELL

1. This is an appeal from a judgment of the Employment Tribunal held at Bristol on 4 April 2005 when the Chairman (Mr J Bedford) sitting alone decided that the Appellant was not a disabled person as defined by section 1(1) of the Disability Discrimination Act 1995 and as a result her claim was dismissed. Reasons were sent to the parties on 19 April 2005. Permission for this hearing was given by HHJ Clark on 23 June 2005.
2. Before the Tribunal there was no dispute that the Appellant had a mental impairment and that it was substantial and long term in that it certainly exceeded a period of twelve months. The issue before the Chairman was whether that impairment had an adverse effect on the Respondent's ability to carry out normal day-to-day activities. The Chairman's conclusion was that the impairment did not prevent her from carrying out those activities.
3. The background facts are that the Appellant was employed as an administrative officer working sixteen hours per week for the Respondents. Her employment commenced on 3 September 2001 and came to an end on 2 April 2004 when she was dismissed under the Respondents' long term absence procedure.
4. Her problems began in around April or May 2002 when she learnt that the organs of her son who had died some fourteen years previously in the Bristol Royal Infirmary had been removed and retained. This information caused her to feel anger and grief and it is not in dispute thereafter she suffered from a lengthy depression. She claimed that it affected her work and eventually in July 2003 she went on sick leave from which she did not return before the termination of her employment. The main issue before the Chairman was whether the depression affected her normal day-to-day activities with particular reference to schedule 1 paragraph 4 of the Disability Discrimination Act 1995 which provides that:

"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."

Before the Chairman the Appellant gave evidence and referred to five written medical reports, only one of which was prepared for the purposes of the hearing.

5. The reports in date order were firstly on 14 May 2003 from Dr Dean-Revington, Occupational Health Services on behalf of the Respondents. This report followed an examination of the Appellant. On 3 February 2004 the Appellant's GP provided a short report to Occupational Health Services and this led to a further short report from Dr Dean-Revington dated 26 February 2004. On 13 July 2004 Dr Rowlands reported for the purposes of an application for incapacity benefit and finally there was a brief report dated 19 October 2004 from Dr Mitchell, the Appellant's GP. They were prepared at the request of her solicitor.
6. In the Grounds of Appeal and her submissions, Miss Russell, on behalf of the Appellant makes the following complaints:

(i) That the Tribunal focused on what the Appellant could do rather than what she could not do.

(ii) That the Tribunal erred in failing to take into account paragraphs C6 and C7 of the Guidance.

(iii) The Tribunal erred in its application at paragraph C20 of the Guidance.

(iv) The Tribunal erred in law by considering the Appellant's condition at the time of the hearing rather than at the relevant time when discrimination is alleged to have taken place i.e. up to dismissal.

(v) The Tribunal erred in law when misdirecting itself regarding the evidence of Dr Dean-Revington.

(vi) The Tribunal erred in the presentation of its decision by failing to take into account Rule 30(6) of the Employment Tribunal Rules 2004.

Ground One

7. Both Counsel agreed that the law requires a Tribunal to focus on what a Claimant says they cannot do or can only do but with difficulty rather than what they could still do. See Ekpe v Commissioner of Police [2001] IRLR 605. Miss Russell's complaint was that the Chairman firstly dealt far too briefly with the medical reports, was selective in referring to the reports, concentrating on what the Appellant could do, rather than what she could not do, and erroneously taking into account opinion evidence of the doctors as to whether the Appellant, did or did not, fall within the Disability Discrimination Act. She complained that the Tribunal virtually ignored the report of the Appellant's GP, Dr Mitchell, minimized and incorrectly summarized the report of Dr Rowlands' and instead focused on selective and contradictory parts of the reports of Dr Dean-Revington. I cannot agree that Dr Dean-Revington's report was less relevant than the later reports. It took place during the period when discrimination is alleged to have taken place and followed an examination of the Appellant.
8. Dealing with Dr Dean-Revington's report of May 2003, the Tribunal said as follows:

"6. Her work did not improve. An Occupational Health Service Report in May 2003, after a full medical examination, said that she was capable of her present duties and the respondent could expect a full and effective service. It stated::

"In relation to the DDA, there is an impairment but the effects on day-to-day activities are minimal".

It further said that the activities of daily living had not been affected.

7. The notes to that report said that she was "coping at home, decorates with help". The claimant took issue with these notes as they mentioned that she-"enjoyed theatre whereas she had never been to the theatre. At that time the claimant was still doing her outside voluntary work once a week."

At paragraph 15, the Chairman said this:

"15. The May 2003 report, when specifically asked whether activities of daily living had been affected, said: "No, they had not". The evidence shows, as she confirmed, that she managed to cope with cooking. Obviously, when emotionally drained, she would rather not cook or do housework if she could avoid it but, when she had to, she managed it. As she put it "I put on a brave face for the children and got on with what had to be done"."

9. Miss Russell complained that the Chairman did not refer to an important section in this report namely box 11 where the doctor ticked that both "speech" and "memory, concentration, learning or understanding" were affected but added the comment, "minimal and intermittent". She also argued that the Chairman ignored the following points from this report, namely that the Appellant had difficulty concentrating, that she was making mistakes, that her voice was strained, that she was liable to recurrent absences until her psychological problems are resolved, that she had psychological vulnerability, that she had an underlying health problem, and that she was awaiting further specialist input.
10. Passing to Dr Rowlands' report, the Tribunal dealt with this report at paragraph 12 in the following terms.

"12. There was a very extensive report based on examination of the claimant carried out on 13 July 2004, after she had been dismissed, and prepared for consideration of incapacity benefit by a Dr Rowland. That, in describing her functional ability, said that she frequently rose at 6.30am to get children up for school, attended to her personal needs, and supervised the children. It said that she tends to neglect housework though she occasionally blitzes it. She prepares and enjoys cooking or family meals, she drives and has her own car. It described her as socially withdrawn. In addition, it mentioned that she sometimes sits doing nothing for several hours each day and watched a great deal of television but "manages most essential day-to-day activities" though she had "a poor attention span, fluttering from one thing to another"."

Miss Russell complained that the bulk of this material came from the two page section of the report dealing with functional ability whereas she contended that the more relevant section was the detailed nine page mental health section from which there were only two references. She contended that one relating to "manager's most essential day-to-day activities" was inadmissible, opinion evidence. I cannot agree. The evidence before the Chairman was that this report was prepared following a detailed interview with the Appellant and there is no reason to suggest other than the comment was made as a result of what he was told by the Appellant.

11. In her submissions Miss Russell listed what she contended was a substantial body of uncontradicted evidence from Dr Rowlands concerning things that the Appellant could not do, or only do with difficulty, which the Tribunal ignored. In particular she referred to the following quotes:

"Poor eye contact" and "Concentration" making "Constant prompting required; sleep problems interfere" with her "Daytime activities"; not able to "Cope with changes in daily routine" due to being "Very anxious" and having "Slept poorly"; frequently finds there are so many things that to do that she "Gives up because of fatigue, apathy or disinterest".

12. Miss Russell then also went on to point out other sources of evidence concerning the Appellant's inability regarding the normal day-to-day activity of "memory or ability to concentrate, learn or understand" which she contends the Chairman ignored. These were:

(a) Difficulty in making decisions (from her Witness Statement)

(b) Difficulty documenting decisions effectively (the Special Performance Review of June 2003)

(c) Difficulty remembering things (Appellant's Witness Statement)

(d) Difficulty in performing accurate work (Informal Interview dated June 2002)

(e) Difficulty in producing sufficient quantity of work (Interview dated 7 June 2002)

13. Miss Russell in conclusion on this topic complained that the Chairman in his Conclusions in paragraph 18 had formed his own medical diagnosis in saying that "This lady was indeed emotionally drained" but failed to focus on the correct part of the medical evidence which would have led to the inevitable conclusion that her memory or ability to concentrate, learn or understand was indeed affected. Dealing with the use of the phrase "emotionally drained" it is clear from paragraph 14 of the Decision that those were the words that the Appellant had used in giving evidence before the Chairman and I cannot find any fault in him repeating them.
14. In response, Miss Dennis reminded me that none of the reports other than the short letter from the GP were prepared for the purposes of the proceedings. The Appellant had not instructed an expert to provide diagnosis of the impairments, observation of day-to-day activities being performed, the ease as to which those activities could be performed, or opinion as to prognosis and effect of medication. See Vicary v British Telecommunications plc [1999] IRLR 680. She contended that the Tribunal did consider all the evidence, the oral evidence from the Appellant and a chronological analysis of the medical reports. She referred to the following specific references within the Tribunal's Decision to show that the Chairman did identify items that the Appellant had said she could not do or had difficulty with:

Paragraph 4

"She told her line manager in a work review meeting that she had difficulty in remembering things. She told me in evidence that her memory was no worse than anyone else and this related to the very difficult work she was being asked to do."

Paragraph 5

"Her doctor prescribed anti-depressants and she said she could not concentrate and at the weekends she "switched off". When _______________ arranged for the children to stay with relatives when this was not possible she did all things necessary to look after them. I did not want to left in bed with my grief but sometimes it just overwhelmed me."

Paragraph 9

"The Claimant said that she had then had more difficulty at home, spending more time in bed and had help from neighbours with the children but always cooked the evening meal for the family. She stopped her charity work."

Paragraph 14

"It has not been suggested that she had any unusual difficulty with learning or understanding. Memory has not been a particular point of contention but I have been concerned about "ability to concentrate"."

Paragraph 15

"Obviously when emotionally drained she would rather not cook or do housework if she could avoid it. But when she had to she managed it. As she put it "I put on a brave face for the children and got on with what had to be done"."

15. Miss Dennis also submitted that the Tribunal's decision included references to all the available medical evidence which included a mixture of descriptions of those activities which the Appellant could, and could not do. She submitted that the Chairman paid no particular attention to the matters about which the Appellant said she was capable of and indeed the only task which the Chairman concluded the Appellant could do, was her ability to cope with cooking.
16. Overall, Miss Dennis submitted that the Tribunal did consider matters in the round making an overall assessment and evaluating the Appellant's evidence properly, correctly focusing on that which the Appellant could not do, or only do with difficulty and deciding the case against that evidential background. I agree with that submission. I am quite satisfied that the Chairman did focus particularly on those matters that the Appellant could not do or had difficulty with but the overall from the medical evidence both from Dr Dean-Revington and Dr Rowlands was that the activities of daily living had not been affected. This appeared to be confirmed by the evidence given by the Appellant.

Ground Two

17. Miss Russell submitted that the Chairman failed to take into account paragraphs C6 and C7 of the Guidance on matters to be taken in account in determining questions relating to the definition of disability contrary to the advice in cases such as Leonard v South Derbyshire Chamber of Commerce [2001] IRLR 19.
18. Paragraph C(6) and C(7) of the Guidance provide that:

"C6 Many impairments will, by their nature, adversely affect a person directly in one of the respects listed in C4. An impairment may also indirectly affect a person in one or more of these respects, and this should be taken into account when assessing whether the impairment falls within the definition. For example-

? medical advice: where a person has been professionally advised to change, limit or refrain from a normal day-to-day activity on account of an impairment or only do it in a certain way or under certain conditions;

? pain or fatigue: where an impairment causes pain or fatigue in performing normal day-to-day activities, so the person may have the capacity to do something but suffer pain in doing so; or the impairment might make the activity more than usually fatiguing so that the person might not be able to repeat the task over a sustained period of time.

C7 Where a person has a mental illness such as depression account should be taken of whether, although that person has the physical ability to perform a task, he or she is, in practice, unable to sustain an activity over a reasonable period."

19. Miss Russell submitted that there was a substantial body of evidence that the Appellant's mental impairment caused her pain and fatigue in the performance of her daily tasks. She referred to the comment about sleep problems in Dr Rowlands' report and also that the Appellant frequently found that there were so many things to do that she "gives up because of fatigue, apathy or disinterest". There was also evidence that she submitted that she was unable to sustain tasks over a period of time and referred to the evidence concerning her difficulty with concentration and again her giving up because of fatigue, apathy or disinterest.
20. Overall, Miss Russell complained that there was no reference to paragraph C6 or C7 within the Tribunal Decision.
21. Miss Dennis responded that there was no evidence that the mental impairment in this case caused pain or fatigue in the performance of particular day-to-day tasks or that the Appellant was unable to sustain a particular task over a period of time. She argued that the guidance required the Tribunal to be alive to the potential indirect effects and to take them into account. She argued that the Tribunal although not specifically referring to the Guidance clearly had in mind the possibility of indirect effect but rejected that possibility. She argued that the conclusions in paragraphs 15 and 17 and 18 of the Tribunal's Decision were that on the available evidence the Appellant's desire to perform day-to-day activities was diminished but that that lack of desire and/or reduced motivation was not within the scope of C6 and C7.
22. I agree with those submissions. I am satisfied that the Tribunal Chairman was entitled to come to conclusion that whilst the Appellant may have had reduced motivation there was no evidence of pain or fatigue or an inability to sustain the task over a period of time.

Ground Three

23. Paragraph C20 of the Guidance is headed 'Memory or Ability to Concentrate, Learn or Understand" and reads as follows:

"C20 Account should be taken of the person's ability to remember, organise his or her thoughts, plan a course of action and carry it out, take in new knowledge, or understand spoken or written instructions. This includes considering whether the person learns to do things significantly more slowly than is normal. Account should be taken of whether the person has persistent and significant difficulty in reading text in standard English or straightforward numbers.

Examples

It would be reasonable to regard as having a substantial adverse effect-

? intermittent loss of consciousness and associated confused behaviour;

? persistent inability to remember the names of familiar people such as family or friends;

? inability to adapt after a reasonable period to minor changes in work routine;

? inability to write a cheque without assistance;

? considerable difficulty in following a short sequence such as a simple recipe or a brief list of domestic tasks.

It would not be reasonable to regard as having a substantial adverse effect:

? occasionally forgetting the name of a familiar person, such as a colleague;

? inability to concentrate on a task requiring application over several hours;

? inability to fill in a long, detailed, technical document without assistance;

? inability to read at faster than normal speech;

? minor problems with writing or spelling."

24. The Chairman dealt with this paragraph of the Guidance at paragraph 16 in the following terms.

"there is reference to the need to take account of a person's ability to remember, organize his or her thoughts, plan a course of action and carry it out, take in new knowledge or understand spoken or written instructions, and that minor matters such as forgetting the name of a familiar purpose or inability to concentrate on a task requiring application over several hours would not reasonably be regarded as having a substantial adverse effect."

Miss Russell submitted that the Tribunal misunderstood the proper function of the Guidance which was only to be used in marginal cases where it was not immediately clear whether or not someone had a disability. She argued that the Tribunal in this case had used it instead in a literal and legalistic fashion to conclude that the Appellant's impairment did not have a substantial affect on her normal day-to-day activities. In any event she contended that there was adequate evidence to demonstrate that her difficulties in concentrating went beyond the minor matters listed at paragraph C20 of the Guidance. She referred to parts of the evidence such as", "poor attention span, fluttering from one thing to another", "poor concentration", "constant prompting", difficulty remembering things.

25. Miss Dennis responded that the Tribunal was indeed required to refer to the guidance in this case because it was a marginal case as see Vicary v British Telecommunications [1999] IRLR 680. She reminded me that whilst the headings of the Guidance were exhaustive, the list of examples were non-exhaustive and were only meant to be illustrative. She contended that the Tribunal did not slavishly follow the examples within C20 but took it into account by way of background coming to the conclusion that there was no substantial adverse effect. Again, I can find no fault in the Chairman's approach. He made proper reference to the Guidance, recited it and applied it.

Ground Four

26. Miss Russell contends that the Chairman erred in law by considering the Appellant's condition at the time of the hearing rather than at the relevant time of discrimination including at the time of dismissal contrary to Cruickshank v VAW Motorcast Ltd [2002] IRLR 24. The only reference to which she makes complaint is at the beginning of paragraph 18 where the Chairman recorded:

"The Claimant tells me that she is now very much better and is coping very well at the present time."

I agree with the submissions of Miss Dennis that this observation was nothing more than a passing remark and certainly cannot be seen to form part of the rationale of the decision. A clear focus of that decision was to concentrate on the Appellant's condition from April 2002 to April 2004. I am quite satisfied that the Chairman had in mind that time span, particularly as he made reference to the conclusions from the two occupational health services reports in May 2003 and February 2004.

Ground Five

27. Miss Russell complained about the Tribunal referring to the May 2003 OHS report and quoting the following passage:

"In relation to the DDA, there is an impairment but the effects on day-to-day activities are minimal."

She argued that it was not for the medical expert to determine the DDA issues but for the Tribunal to make an independent assessment. See Vicary v British Telecommunications plc [1999] IRLR 680 and Abadeh v British Telecommunications plc [2001] IRLR 23. She argued that this inadmissible opinion evidence was a factor in the Chairman's decision. In response Miss Dennis repeats that there was no conventional DDA issue dedicated report available and the other reports were prepared for the reasons that I have outlined above. The Dean-Revington report was prepared for the Respondents as part of the OHS review and obviously with some focus on the DDA and the possible requirement to make adjustments. She submitted that whilst the evidence may have encroached upon to the ultimate issue, in reaching its decision the Tribunal was bound to refer to the evidence which was presented to it, and to evaluate the evidence with care. I can find nothing to suggest that the Chairman was overwhelmed or persuaded by this particular opinion of evidence, and indeed it is clear from paragraph 17 and 18 that the Chairman was deciding the issue for himself and in particular relied heavily on the oral evidence given by the Appellant.

Ground Six

28. Rule 30(6) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 provides that: P1841 para 3171

"(6) Written reasons for a judgment shall include the following information-

(a) the issues which the tribunal or chairman has identified as being relevant to the claim;

(b) if some identified issues were not determined, what those issues were and why they were not determined;

(c) findings of fact relevant to the issues which have been determined;

(d) a concise statement of the applicable law;

(e) how the relevant findings of fact and applicable law have been applied in order to determine the issues, and

(f) where the judgment includes an award of compensation or a determination that one party make a payment to the other, a table showing how the amount or sum has been calculated or a description of the manner in which it has been calculated."

29. Miss Russell's brief submission is that the decision in this case does not follow the suggested structure. I cannot agree. The purpose of this rule is to provide a reminder or template for a tribunal chairman as to the information that should be included in a judgment and not a strict structure to be followed in every case. The purpose of this regulation is to ensure the parties are provided with a reasonable explanation of the findings of fact, the applicable law, the conclusions reached, and the reasoning behind those conclusions. I am quite satisfied that this decision complied with that requirement.
30. Accordingly, I can find no fault with the decision and this appeal is dismissed.