United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR OWEN PRYS LEWIS (of Counsel)
For the Respondent	MR TOBY KEMPSTER (of Counsel) Instructed by: Messrs Hugh James Solicitors Hodge House 114-116 St Mary Street Cardiff CF10 1DY

SUMMARY

Disability Discrimination

Whether the Claimant is disabled. Employment Tribunal failed to consider deduced effect (both medication and coping strategies). No proper findings of fact as to extent of adverse effect. Remitted to fresh employment tribunal for rehearing.

HIS HONOUR JUDGE PETER CLARK

1. This is an appeal by Mrs Gillian Jenkins, the Claimant before the Cardiff Employment Tribunal, against that Tribunal's judgment, promulgated with reasons on 8 November 2004, that she did not have a disability within the meaning of section 1 of the Disability Discrimination Act 1995, resulting in her complaint of unlawful disability discrimination being dismissed. The Respondent is her former employer, Hugh James Solicitors.
2. The Claimant was employed by the Respondent from June 1990 until her resignation on 1 March 2004. At that time she was a trainee solicitor, having commenced her employment as a secretary.
3. In July 2003 she began to experience panic attacks, a condition which the joint expert reporting in this case, Dr Peter Jenkins, a Consultant Psychiatrist, diagnosed as panic disorder as defined in DSM4, a well recognized mental illness.
4. The principal effect of her mental condition, the Claimant contended, was on her ability to travel. She described that effect at paragraph 29 of her witness statement, which was put before the Tribunal, in these terms:

"As far as travel is concerned, although I can drive in the day I cannot drive on my own for any distance, I can only go on my own if I know I can get home within 10 minutes. This is the reason I have not tried to secure employment with another firm of solicitors, as I would be unable to travel to court, especially in a city such as Cardiff or Newport. I am unable to travel to Cardiff on my own and this is only 30 minutes away. I cannot go Christmas Shopping on my own. I cannot go out socially with friends as I am unable to go anywhere without my mother or husband being with me as I do not feel safe. My social activity is non existent apart from meals out with my family. My family is my safety net, I cannot function without them around me. It is very difficult to emphasise the extent to which my life has changed."

5. In evidence-in-chief she added that she was unable to drive at all between July 2003 and March 2004. She then eventually managed to travel, with someone else short, distances; she would go to the supermarket five minutes drive away. In December 2003 she travelled with her mother and husband to Cardiff to do Christmas shopping; that was about 45 minutes; and she would travel at a time when the roads were not busy and go short distances – not as far as Cardiff on her own – from March 2004. She also said that she would never fly again (previously she had holidayed abroad twice a year for 17 years) because she was afraid of panic attacks if she were to fly.
6. She was cross-examined and did accept that by March 2004 she was able to drive to work on her own, and that by January or February 2004 she felt able to travel to Merthyr Tydfil to work, because her mother had already confirmed that she was going to transfer to an office in Merthyr, and would have been able to travel with her.
7. We set out her evidence as to her travel difficulties in some details because the Employment Tribunal's Reasons are particularly lacking in findings of fact as to the degree to which her ability to carry out the normal day-to-day activity of travel was impaired, both during the relevant period, that is July 2003 until 1 March 2004, and subsequently.
8. She was prescribed Citalopram, an anti-depressant. In evidence she said that without medication she did not know how she would be; and at paragraph 7.7 of his amended report Dr Jenkins expressed the opinion that without treatment her condition would be worse and likely to recur.
9. She adopted coping strategies in relation to her travel phobia, relying on her mother and husband in particular to accompany her, as her evidence demonstrated.
10. The test of disability under section 1 of the Act has four constituent parts, as identified by Morison P in Goodwin v Patent Office [1999] IRLR 4

1. Does the Claimant have an impairment which is mental or physical?

2. Does the impairment have an adverse effect on her ability to carry out normal day-to-day activities?

3. Is the adverse effect substantial, that is more than minor or trivial?

4. Is the adverse effect long-term?

In the present case it was agreed below that the Claimant made out the first and fourth elements. The second and third were in issue.

11. The Employment Tribunal, having been directed to the relevant statutory provisions, DTI Guidance and to both Goodwin and Abadeh v British Telecommunications plc
    [2001] ICR 156 (EAT, Nelson J Presiding) concluded, Reasons paragraph 10, that:

"…any adverse effect on the Claimant's ability to carry out normal day-to-day activities was not substantial."

Thus, the Claimant failed, essentially, on the third element of the four-fold test for disability.

12. The principal points taken on behalf of the Claimant in this appeal by Mr Lewis are first that the Tribunal failed to judge the question of whether any adverse effect was substantial at the relevant time, that is up to 1 March 2004, as opposed to the time when Dr Jenkins reported in early 2004, and when the Claimant was in remission. We see the force of that submission. There is no real indication from their Reasons that the Tribunal directed their minds to the severity of the effects of her condition on her mobility at the relevant time, as opposed to her improved state after 1 March 2004.
13. However, the more the telling point, we think, is that although the Tribunal correctly directed themselves as to the need to gauge the deduced effect of her condition, that is without medication and without the coping strategies which she employed, they then failed to carry out that exercise in practice. We can see no indication from their Reasons that the Tribunal considered the deduced effect, notwithstanding Dr Jenkins' opinion, expressed at paragraph 7.7 of his report, to which no reference is made by the Tribunal. As to her coping strategies, far from stripping out that element the Tribunal appear to have concluded that the Claimant allowed herself to be too dependent, thereby giving herself no opportunity to challenge her phobia. There is no analysis of her evidence that in the early stages she felt unable to travel without such support.
14. Mr Kempster accepts that if we conclude that the Tribunal failed to consider the deduced effect then that amounted to an error of law. We do so conclude and consequently find that the Tribunal fell into error.
15. The question then is what should be done with this case. Mr Lewis urges us to decide the question of disability ourselves; all the necessary evidence is before us on paper. Mr Kempster invites us to remit the question of disability to a fresh Tribunal for determination on the facts as found after hearing and seeing the witnesses. With some reluctance, since it will necessitate a further hearing of this preliminary issue, we shall accede to Mr Kempster's submission. It seems to us that the Tribunal judgment now under appeal is singularly lacking in findings of fact as to the precise extent of the adverse effect on this Claimant's ability to carry out her day-to-day activities at the material time. Only when those factual findings are made can the question of whether the adverse effect is or is not more than minor or trivial be properly answered.
16. In these circumstances we shall allow this appeal, and remit the issue of disability to a fresh employment tribunal for rehearing.