Appeal No. UKEAT/0383/12/DM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
8 February 2013
Before
THE
HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
(SITTING ALONE)
MRS
T TURNER APPELLANT
SOUTH
CENTRAL AMBULANCE SERVICE NHS TRUST RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
DISABILITY DISCRIMINATION
A Claimant suffered from PTSD, diagnosed in 2004. She had
suffered episodes of stress thereafter, causing symptoms, which she attributed
to her PTSD. Psychiatric evidence differed as to whether these were recurrent
episodes of PTSD or separate short‑lived events of stress‑related
symptoms. The Employment Judge held it was the latter. However, though
rejecting an underlying condition throughout the Claimant’s employment he
indicated that she might have had sufficient symptoms for part of her time in
employment to qualify as a disability, and on one reading of his Reasons
rejected the conclusion that she did only because he adopted the wrong standard
of proof. Held that in context he had not erred in that way, and had actually
concluded that there was sufficient evidence for him properly to conclude that
the Claimant had been disabled for part of the time, and indeed when she had
been so.
THE HONOURABLE MR
JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.
An Employment Judge at Reading concluded that the Claimant was not
disabled. The issue on this appeal is whether that decision can stand.
2.
The context is this. The Claimant was employed from
10 March 2008, she said, until she resigned on
18 February 2011. She claimed to be disabled because she claimed to
suffer throughout that period from the symptoms of post‑traumatic stress
disorder (PTSD). The PTSD had originated in a car accident in 1998, in which,
the Claimant asserted, she had broken her neck. Highly unusually, and beyond
the general experience of the consultant psychiatrists who were called to give
evidence, the PTSD did not manifest itself immediately; it did so in 2004. Thereafter
the Claimant said that she suffered from the adverse effects of a number of
stressful circumstances. She attributed those effects to what she said was the
underlying PTSD. Events of which she complained during her period of
employment with the Respondent ambulance service caused some of these symptoms,
which she attributed to the underlying condition. It follows that if they were
to be attributed to an underlying condition, then there had been episodes of a
recurrence of that condition, and it might properly be said that the condition
was likely to recur and would have been seen by any reasonable observer and
employer as likely to do so.
3.
There was, however, another way of viewing what had happened. That was
that the stresses from which the Claimant suffered from time to time caused her
symptoms from time to time but each occasion was no more than would be caused
to any ordinary person suffering from some of the adverse effects from time to
time of particular pressures in their life. They would be individual episodes
not linked to each other by any underlying condition, each of which would be
relatively short‑lived and none of which would justify being described as
a disability within the meaning of the Equality Act 2010,
which, it was accepted, applied to the case.
4.
The Claimant supported her belief by calling before the Tribunal Judge
Dr Burke, a consultant psychiatrist. He thought that the various
occasions on which the Claimant had had florid symptoms were all aspects of the
underlying condition. He gave evidence essentially to that effect. An equally
respectable professional view was put forward on behalf of the Respondent by a
Dr Isaacs, another consultant psychiatrist. He took the view that the
episodes were caused by individual stressors, that there was no evidence of any
underlying condition, they were not linked, and it would follow that legally
the Claimant could not be regarded as disabled.
The Judgment
5.
In that context the Judge was considering, essentially, a case in which
the Claimant was saying that throughout the period of her employment she had
suffered from an underlying condition always liable to break out again and it
had done so. He considered the conflict between the two psychiatrists and in
his conclusions was satisfied that the Claimant had been diagnosed with PTSD in
2004, but he found, and he was entitled to do so on the evidence, that that
condition did not last for as long as 12 months; see paragraph 50. At
paragraph 51 he said this:
“[…] I am not satisfied that the condition as described in 2004
has subsequently recurred after 2004. I am satisfied that there was no
evidence of a continuing impairment.”
6.
That is a finding of fact that excludes any period of time during which
the Claimant was employed by the Respondent as having been a period of time
during which she suffered from PTSD or any recrudescence of it. At
paragraph 56 he underlined that conclusion by noting that he had preferred
the analysis provided by Dr Isaacs. He was entitled to draw that
conclusion, and he gave reasons for it at paragraph 57 by reference to
whether there had been any evidence of PTSD symptoms during that period. He
noted there had been episodes of stress at work, but he did not regard those as
any evidence of the underlying condition that had been alleged.
7.
Then he said this, in three paragraphs that have proved controversial:
“58. In considering the question whether or not the Claimant was
a disabled person from 2008 until the termination of her employment, I have
come to the conclusion that the Claimant was not a disabled person throughout
this period.
59. I have asked myself whether I am able to identify a period
of time at which the Claimant is clearly a disabled person and if so on what
basis. I am however unable to answer that question with certainty although
judging from the evidence which the Claimant has given, the general
descriptions that she gives of her symptoms and also a consideration of the
doctor’s notes it would appear to me that towards the end of the period of the
Claimant’s employment from about 2009 onwards that the Claimant may have become
a disabled person. Before that tiem [sic] I am not satisfied that the Claimant
has described a condition which is an impairment that has s [sic] substantial
and long‑term adverse effect on her ability to carry out normal day to
day activities.
60. On balance, then, I do not feel able to conclude that the
Claimant was a disabled person at the relevant time. The evidence in this case
has been directed to showing that the Claimant was a disabled person throughout
the whole period, it has not.”
8.
The central paragraph of those three, paragraph 59, does reflect
what happened at the hearing. At some time around about 3 o’clock in the afternoon
the Judge rose to consider the evidence he had heard. He indicated that he
might be able to give judgment that afternoon. An hour and a quarter or so
later, at 4.25pm, he returned into court. He wished to clarify whether he was
being asked whether the Claimant was disabled between 2008 and 2010 or whether
at any point between 2008 to 2010 she became disabled. The Claimant,
represented then, as now, by Mr Pretsell of counsel, responded that her
case was that she had disability throughout. He responded:
“If disabled through employment – will say no. If disabled some
point through employment – will need to keep thinking. Not going to give an
answer today. Got my indication. Will come back to it later in week. Reserve
decision. If asking through whole period of time – then no. If part of that
time – then don’t know.”
9.
In saying that, the Judge had plainly indicated that if the question he
had to determine was whether throughout the three years from 2008 to 2010 the
Claimant was disabled, he had a firm answer in mind; that was no. What
prevented him giving the decision at the time was that he apprehended that he
needed to consider whether there might nonetheless be some point at which she
became disabled. It would follow inevitably, in my view, that what he had in
mind was not a recurrence of an underlying condition. If it had been, he would
have found that she was disabled throughout, but he rejected that case for
reasons that were subsequently to appear in his Judgment. What he must have
been considering was whether there was a sufficient description of the symptoms
for an episode of such symptoms standing on its own or linked with other such
episodes to amount to a disability even if it was not itself a recurrence of
the PTSD. That that was what was almost certainly in his mind is demonstrated
by what he went on to say in paragraphs 54 and 55 of his
Judgment. In those he said that if the Claimant was describing an ongoing
condition of PTSD, it was a long‑term condition and must be substantial;
in other words, he would have been bound to find that throughout the period
2008‑2010 she was disabled. At paragraph 55 he added this:
“However if she is not describing an ongoing condition of PTSD
but episodes of stress it would be necessary to consider whether in relation to
each particular episode the Claimant is describing something which is
substantial and long‑term so as to comply with the definition contained
in Section 6 of the Equality Act, either as one ongoing condition or
a recurring condition, whatever label is attached to it.”
10.
It was therefore that aspect that he had indicated at the conclusion of
the hearing that he did not then know the answer to and needed time to think
about. Seen in that light, paragraph 59 begins to take on a particular
meaning in context, to which I shall return when I have outlined the
submissions made to me.
Submissions
11.
For the Claimant, Mr Pretsell raises three points in his skeleton argument
summarising the grounds of appeal: first, that the Judge misapplied the law by
restricting his approach to the question of whether the Claimant suffered from
a disability to a consideration of whether she suffered from a disability
throughout the whole period of her employment, and he thereby failed properly
to consider whether there was a recurrence of her condition; secondly, that he
erred in law by applying an incorrect test as to the burden of proof when
considering whether she was disabled; and thirdly, that he failed to consider
whether she was disabled at the time of the relevant discriminatory acts. The
first and third plainly go together.
12.
It is clear from what I have already said that the Judge formed a view
that he was entitled to reach, and clearly expressed, that the Claimant was not
suffering from episodes during her employment that could be linked to one
underlying condition of PTSD as she had claimed. The second ground, however,
has this to be said for it. It focuses upon the words “clearly” and “with
certainty” that appear in paragraph 59. Those words are words that may suggest
that the Judge had in mind not a test on the balance of probabilities but a
test, applying the criminal standard of being satisfied so as to be sure or
beyond any reasonable doubt. That is compounded by the last sentence of paragraph 59,
which indicated that the evidence had not satisfied the Judge that she was
suffering from a disability at that time. That of course leaves open whether
he was so satisfied that she had described a condition that was a disability
after that time. The use of the words “may have become a disabled person”
indicated a possibility. If the Judge had been applying the wrong standard to
the evidence that suggested to him that the Claimant might have been suffering
from a disability at a period of time in which she was in employment, from
about 2009 onwards, his conclusion would not have been reached on a sustainable
basis and he would have taken the wrong approach.
13.
At one point in his submissions Mr Pretsell felt inclined to agree
with a comment from the Bench that the burden of proof question was really the
central question. If, suppose, the Judge had, instead of using the words
“clearly a disabled person” and “unable to answer that question with
certainty”, said “is on balance a disabled person” or “unable to answer that
question with the certainty required by the civil standard”, the finding that
the Judge came to would be one of fact and would be unimpeachable. That is
not, however, what he said.
14.
Ms Cowen, who appears for the Respondent, as she did below, began
her submissions by inviting me to isolate paragraph 59 as not forming any
part of the Judgment upon which I could rely. Later in her submissions,
however, she argued that paragraph 59 was to be seen in context, and she
noted that two matters were central to the decision that the Judge had to
make. One was the question of whether the definition of disability was
satisfied at all, at any time, but the second question was precisely when. The
Claimant here had set out a number of particular acts that she said constituted
discrimination against her on the grounds of disability. It needed to be known
whether at the time of those acts the Claimant was disabled. Thus she invited
me to read paragraphs 58, 59 and 60 together and to focus
in particular upon the words “able to identify a period of time at which the
Claimant is clearly a disabled person” as relating not just to disability but
as to the second question: when? That question he plainly could not answer
with any sufficient certainty. “Look,” she argued, “at the words ‘from about
2009 onwards’.” Those words are vague. They do not admit to the precision
that would be necessary in order to resolve the Claimant’s complaints that she
had been discriminated against on the grounds of a disability.
Discussion
15.
A Tribunal Judgment must not be viewed as if it were the finest piece of
legal draughtsmanship. It may, and often does, contain infelicities. The
words used may not convey precisely what the Tribunal intends to convey. For
that reason in particular, a Judgment must be read in context. That context is
not only the context internal to the Judgment; it is also the context of the
case in general at the conclusion of which it comes. In my view, two aspects
of that context are of particular relevance here. First, the Judge had
indicated when he returned into the Tribunal that he had reached a clear view
as to the underlying condition; there was not one. He indicated that what he
wished to consider was whether nonetheless what had been described to him in
evidence satisfied him that there was another disability. He was uncertain
about that; that is plain. What he thus had to consider, and what, in my view,
he was expressing between paragraphs 58 and 60, was why he was
uncertain and that he remained uncertain at the end of the evidence.
16.
Secondly, the context was one in which he had preferred, and clearly
preferred, the case made by the Respondent as to the absence of any ongoing
PTSD.
17.
Next, I take into account that this is in general a careful and
thoughtful Judgment; if anything, the complaint might be made that it is
perhaps almost too internally reflective. To suppose that an Employment Judge
in using the words “clearly” and “with certainty” was indicating that he was
actually applying a standard of proof greater than that necessary would be to
hold that he was committing one of the most basic errors, which is not a
probable one. That said, a court on appeal has only the words used to
understand the reason. But those words have to be seen in context.
18.
Focussing more narrowly on the context internal to the Judgment,
paragraph 58 expresses a clear conclusion as to the whole of the period.
That, as I have noted, excluded the underlying PTSD. Paragraph 60 begins
with the words “on balance”. It is not altogether easy from the words used to
see what is being balanced here, because there is nothing obviously in
paragraph 59 that requires to be held in balance, one fact against another,
unless it is whether the description of symptoms given by the Claimant from
about 2009 onwards was sufficient to show a disability. But it does indicate
to me that the Judge had here the test of balance of probabilities in mind.
19.
Turning more centrally still to paragraph 59 itself, there were, I
accept from Ms Cowen’s submissions, two matters that the Judge would need to
establish if he were to hold the Claimant disabled for the purposes of this
claim. The first was her condition and the length of time for which it would
last or recur; the second was the time at which she suffered it. He could not
be clear about when; that is plain from the use of the words “about 2009
onwards”, and his initial question was seeking to identify a period of time.
The recognition that the Judge gave to the possibility that the Claimant may
have become a disabled person is in that light entirely appropriate, but it is
described as a possibility only. Possibility would not be sufficient to
satisfy the appropriate standard of proof.
20.
In paragraph 60, the Judge was expressing his conclusion. It is
said by Mr Pretsell that the second sentence in that paragraph did not fit
with what went before and indicated, he submits, that the Judge was focussing
upon the question of whether throughout the whole of the period the Claimant
was a disabled person. I do not accept that submission. The reason it cannot
be right is that the Judge had clearly answered the question about the whole of
the period; he did so in paragraph 58, and he had done so at the
conclusion of the hearing at 4.25pm. This sentence therefore has some other
function. I see it as explaining why in his view there had been evidential
insufficiency. The case that had been made before him upon which the parties
had focussed was that of the underlying PTSD, something that would have applied
throughout the whole of the period. He therefore did not have the material
from which he could safely conclude to the requisite standard that for some
other reason the Claimant had suffered for long enough or from episodes of
stress that might be recurring, as he put it in paragraph 55, from some
time in 2009 onwards. He recognised the possibility, but he was saying that on
balance he could not be satisfied that it had been shown to him, and the burden
of proof lay upon the Claimant.
21.
I reject the submission made by Ms Cowen that paragraph 59
should be isolated. It is not an appropriate approach to take to any Judgment
to isolate one paragraph as though it should simply be ignored when considering
what the Judgment stands for. I do not see that her reference to Jones v Mid Glamorgan County Council
[1997] IRLR 685, paragraph 30, in any way justifies ignoring what is said
in a paragraph. However, I am persuaded by her later submission that the
paragraph can be and should be read in context; that the word “clearly” was
dealing with the joint questions of time and disability, and the words “with
certainty”, though not felicitous, do not persuade me that the Judge here was
adopting the wrong standard of proof.
Conclusion
22.
If I am satisfied that the Judge in paragraphs 58 to 60
was applying the correct standard of proof and on such an application found
that there was insufficient, on balance, to persuade him that the Claimant was
disabled at the relevant time, then this Judgment is unassailable, and the
appeal must fail. Since that is the conclusion to which I have come as to the
proper way in which to read this Judgment, it fails.
