United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR EDWARD BROWN (of Counsel) Instructed by: Messrs Speechly Bircham LLP Solicitors 6 St Andrew Street London EC4A 3LX
For the Respondent	MR MICHAEL GRANT (Representative)


 


SUMMARY

DISABILITY DISCRIMINATION

Whether an Employment Tribunal is free to reach a finding of discrimination when an agreed expert's medical report does not support such a finding.


 


HIS HONOUR JUDGE PUGSLEY

1. This is an appeal from a decision of the Leeds Employment Tribunal promulgated on 18 June that the Claimant is a disabled person. By an earlier case management decision it was decided to take the issue of whether the Claimant was a disabled person as a preliminary issue; a jointly instructed consultant psychiatrist, Dr Alexander, was asked to prepare a report.
2. This is a case in which, as the Employment Judge noted in paragraph 2 of the decision, the medical report of Dr Alexander placed the Claimant in severe difficulties and in paragraph 3 of the decision Employment Judge Burton accepted that on the basis of the report the Claimant's case on disability failed. The difficulty which confronted Employment Judge Burton was reconciling that report with the evidence he heard from the Claimant, from her husband, her son and a friend, Mrs Palmer, as to her condition which he found to be compelling. That evidence which is set out at paragraphs 4 and 5 paints a picture of the Claimant as a recluse; imprisoned by her own anxiety from any contact with people without the support of the family. Although a keen gardener she could only work in the rear garden where she would not meet anyone.
3. Dr Alexander's report was a comprehensive document and I am well aware that in seeking to summarise the contents of a report there is a danger of over simplification. However I consider that the summary contained in the Appellant's skeleton argument is a fair one which
   

I gratefully adopt. Dr Alexander concluded on the basis of his medical records and his examination:

a) That the Claimant suffered from work related stress; a description which does not constitute a mental impairment for the purposes of the Disability Discrimination Act (14/72-75).

b) That such impairment was not substantial and did not have an adverse effect on the Claimant's ability to carry out day-to-day activities. (14/74)

c) That the Claimant suffered from the condition for a period of only ten months (October 2006 – August 2007) and therefore the condition was not long term (14/75).

d) That the Claimant at the time of the examination but not at the time of the alleged discriminatory acts was suffering from mixed anxiety and depressive disorder.

4. Courts frequently receive medical evidence in civil actions, in the family jurisdiction and in criminal cases. The diagnosis of medical conditions is obviously a matter which requires the expertise and experience of medical practitioners. However, it would be an abdication of responsibility for courts or tribunals to accept uncritically the conclusions of any medical expert without ascertaining the factual basis upon which such conclusions are reached. The experience of the courts is that in the area of personal injury litigation, physical and sexual abuse of children or psychiatric or psychological assessments that there will be cases in which, on a critical analysis of the evidence, the expert's conclusion crucially depends on a finding of fact that rests on the credibility of what a party to the litigation is saying rather than on objective clinical assessment that only an expert can make. To give a trite example in the case of a traffic accident the diagnosis of whether the injured person has suffered a fractured bone is a matter of clinical expertise; the prognosis of the condition may be partly a matter of medical expertise but also in part may rest on the credibility of the injured person as to whether he or she is telling the truth about the symptoms. The injured person may claim that as a result of the accident he, or she, suffers from fear, helplessness and horror in driving or being a passenger in a motor vehicle. It is a matter of expert evidence as to whether these complaints constitute post-traumatic stress disorder and the evidence of the psychologist or psychiatrist may assist the court in making its assessment of the credibility of the claimant as to whether he or she does experience the symptoms claimed. However, in the final analysis it is a matter of fact for the court whether the claimant is relating a real experience rather than a fabricated account deriving from other sources.
5. It is to be noted that at various stages in the report Dr Alexander makes judgments or assessments which are arguably concealed findings of fact. For example at page 74 he states there is no evidence that work related stress contributed to any problems to Mrs Grant to carry out any normal day to day activities. That is the sort of statement that sits more happily in a judicial decision rather than in a medical report. In the final sentence of that page commenting on the Claimant's complaint of her difficulty to concentrate, it is said this is a subjective symptom of Mrs Grant and there is no objective medical evidence to substantiate that she had an impairment of concentration. The difficulty with this approach is it does not set out what objective medical evidence there could as to this condition and why there is the implicit disparagement of Mrs Grant's account by saying it is merely subjective.
6. The Employment Judge was confronted with the position that this was an agreed report. At paragraph 6 of the decision he noted that at the time of the examination the Claimant was diagnosed as suffering from a mixed state of anxiety and depressive disorder and that it was therefore justifiable for him to conclude that these symptoms have existed from January 2007 and that therefore the Claimant has suffered a mental impairment since that date.
7. At the nub of this appeal is the contention that the Tribunal erred in law in drawing this conclusion and that it was in effect substituting its own finding in the light of qualified and informed professional opinion. This it is said offends the guidance given by such cases as Morgan v Staffordshire University [2002] IRLR 190 and Dunham v Ashford Windows [2005] IRLR 608
8. Although there is considerable force in Mr Brown's contention I consider that he is slightly overstating the position. The Tribunal was drawing an inference that in the light of the evidence which it had heard it was entitled to conclude that the condition which had been found by Dr Alexander on examination had existed prior to the date of the examination. As Mr Grant has pointed out the case of John Grooms Housing Association v Ms Burdett UKEAT/0937/03/TM (EAT) suggests that it is open for a Tribunal to infer that a Claimant who suffered from a condition at the time of a medical examination also suffered from the condition at the time of the act of discrimination.
9. Moreover as the Employment Judge pointed out in his decision the 2005 amendments to the Disability Discrimination Act removed the need for claimants to demonstrate that a mental impairment resulted from a clinically well recognised illness. The Employment Judge recognised that the Claimant's case had not been assisted by a letter written on her behalf by her GP in which it was said that the Claimant's illness had not interfered with her normal day-to-day activities (see paragraph 18) nor by the Claimant or her solicitors suggesting that she was keen to work (see paragraph 19). However at paragraph 20 the Tribunal pointed out that although contemporary documentation gave it good reason to question the evidence the detailed and graphic evidence which it heard was compelling evidence which it accepted.
10. With hindsight it is unfortunate that Dr Alexander did not give evidence although I appreciate that it would have added to the cost of the case. The concerns which I have expressed as to his report may well have been explained by him. It may be that had Dr Alexander heard the evidence the Tribunal heard he may have modified his view. Moreover it would have been helpful to have had Dr Alexander's view as to whether the evidence that the Tribunal heard was consistent with the complaints that the Claimant had made to him.
11. In no way am I suggesting that tribunals should substitute their own view for that of a jointly instructed expert. In many cases it would be preferable for a tribunal which found itself in the position this tribunal reached to adjourn the hearing to seek the view of the medical expert in the light of the view that the tribunal reached as to the evidence the tribunal found compelling. I cannot say that there is an error of law in this Tribunal's decision that the Claimant was suffering from a mental impairment and it had a substantial effect on her ability to carry out day to day activities. Its findings were robust and other tribunals might, as I have indicated, consider adjourning to seek the view of the medical expert but I do not consider on the particular facts of this case that the approach the Tribunal adopted can be said to be in error.
12. However I consider the Appellant does have a valid ground on one aspect of the judgment; namely the approach the Tribunal adopted in relation to the question of whether the mental impairment was long term. It is not clear why the Tribunal decided at paragraph 6 that the mental impairment had started in January 2007 nor is it clear whether the Tribunal had in mind the full statutory test which has three categories concerning the impairment; namely that it has lasted for 12 months; the period for which it lasts is likely to be at least 12 months or it is likely to last for the rest of the person's life. Paragraph 9 of the decision refers only to the 12 month test. However the Tribunal do not appear to have considered whether the 12 month test was satisfied at the time of the alleged discriminatory acts as opposed to the date of the hearing. Moreover the Tribunal has made no findings of fact to justify whether the conditions of either of the other categories have been met.
13. I consider that the appeal must be allowed on this ground alone and the case remitted to the same Tribunal to ask it to reconsider the issue of whether the Claimant's mental impairment was long term within the meaning of the Act.
14. I am grateful for the great help I have received from both the parties. The fact that much of this hearing has been concerned with legal technicality does not obscure the human sadness of this case. If there is any way in which this case can be resolved without further litigation I do hope in the interests of all the parties this matter is explored.