United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0334/15/JOJ

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

At the Tribunal

On 17 March 2016

Judgment handed down on 8 April 2016

 

 

 

Before

THE HONOURABLE MR JUSTICE KERR

(SITTING ALONE)

 

 

 

 

 

 

MS R APPLEBY   APPELLANT

 

 

 

(1) THE GOVERNING BODY OF COLBURN COMMUNITY

PRIMARY SCHOOL

(2) NORTH YORKSHIRE COUNTY COUNCIL RESPONDENTS

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR DECLAN O’DEMPSEY (of Counsel) Bar Pro Bono Scheme
For the Respondents	MR TIMOTHY WILKINSON (of Counsel) Instructed by: Legal and Democratic Services North Yorkshire County Council County Hall Northallerton North Yorkshire DL7 8AD

 

 

SUMMARY

SEX DISCRIMINATION - Direct

 

The Employment Tribunal did not err in its analysis, reasoning and conclusions when considering the time with effect from which the Claimant began to suffer from a disability consisting of a mental impairment.  Properly read, the Tribunal’s Decision did not disclose any error of law.

 

The Tribunal’s further consequential reasoning and conclusions on the issues of reasonable adjustments, constructive knowledge of the employer and the proportionality of the dismissal of the Appellant as a response to the legitimate aim of administering the First Respondent’s school where she was a Teaching Assistant, were not marred by any legal flaw.

 

THE HONOURABLE MR JUSTICE KERR

 

1.                  The Appellant, Ms Appleby, appeals on three grounds against the Decision of the Employment Tribunal sitting in Middlesbrough.  The Hearing was before Employment Judge Wade sitting with Mrs Tarn and Mr Carter.  It took place over four days from 22 to 25 September 2014.  The Tribunal deliberated in private on 30 September 2014 and gave a Reserved Judgment signed by the Employment Judge on 27 November and sent to the parties on 1 December 2014.

 

2.                  The Tribunal dismissed the claims of the Claimant (as I shall call her) for disability discrimination by failure to make reasonable adjustments, disability related harassment, disability discrimination consisting of unfavourable treatment because of something arising in consequence of her disability, and unfair dismissal.

 

3.                  Following the sift process and a Preliminary Hearing, the permitted grounds of appeal were limited to those considered in this Judgment.  They all relate to the failure of the claims for disability discrimination.  The Claimant was not permitted to appeal against the rejection of her claim for unfair dismissal, which stands dismissed.

 

4.                  I was greatly assisted by the helpful written and oral submissions of Mr O’Dempsey, generously appearing through the Bar Pro Bono Unit for the Claimant, and of Mr Wilkinson for the Respondents.

 

5.                  The background to the claim was, briefly, as follows.  The Claimant had moved to Spain and married in the late eighties.  She and her husband worked there as English Teachers.  In 1992 she gave birth to a baby daughter in a hospital in Spain and was told that, tragically, the baby had died.  After that she suffered anxiety and depression, but over time recovered.

 

6.                  The Claimant gave birth to two further children in 1996 and 2002.  The family remained in Spain.  In 2004, her marriage broke down and two years later she moved back to this country with her daughter and son.  In 2006 she became a volunteer at the First Respondent’s school.  From 10 January 2007, she became employed by the school as a General Teaching Assistant.

 

7.                  From June 2007, she experienced symptoms of narcolepsy and this was diagnosed soon afterwards.  The effects were, at all times material to the claim, such as to amount to a disability within the Equality Act 2010.  That is not disputed in the present appeal.

 

8.                  A new Head Teacher, Mr Watt, arrived at the school in September 2010.  The Claimant had some sickness absences from that time and into 2011.  In her claim, she asserted disability discrimination with effect from the autumn of 2011. 

 

9.                  In February 2012, the Claimant received news that certain babies born in Spain in the early 1990s, possibly including her own, may have been kidnapped and trafficked rather than having died.  The Claimant was distraught at this news.  Thereafter, her sickness absences became more frequent.  The Respondents’ Occupational Health Advisor became involved.

 

10.              Difficulties arose in the running of the school as a result of the Claimant’s absences.  After a protracted and difficult process, the Claimant was eventually dismissed with notice on 24 October 2013.  An appeal against that decision was heard on 19 November 2013 but did not succeed.

11.              The Tribunal in its Written Decision, after making its findings of fact (in considerably more detail than the summary just given), proceeded to set out the law applicable to the unfair dismissal claim and the three types of disability discrimination claim brought under the Equality Act 2010.  There is no criticism of the Tribunal’s account of that body of law.

 

12.              The Tribunal went on to refer to the Equality and Human Rights Commission Code on Employment 2011 (“the Code”) and to the purpose of the Code, namely to provide a detailed explanation of the 2010 Act and practical guidance on compliance with it.

 

13.              The Tribunal then proceeded (paragraph 140 and following in its Decision) to apply the law to the facts as it had found them to be.  I shall refer only to the reasoning and conclusions of the Tribunal in so far as relevant to this appeal.

 

14.              First, the Tribunal found (paragraphs 142 to 148) that the Claimant had suffered from narcolepsy at all times material to the discrimination claims, that it was a physical impairment, and that her narcolepsy was a disability within the meaning of the 2010 Act.

 

15.              Next, the Tribunal found (paragraphs 149 to 161) that the Claimant, in addition, suffered from a further disability within the meaning of the 2010 Act, which was a mental impairment, with effect from April 2013 onwards.  Thus, the Tribunal’s finding was that from the autumn of 2011 she suffered from a disability, namely narcolepsy; while from April 2013 onwards, up until her dismissal, she suffered both from that disability and a further disability consisting of a mental impairment.

 

16.              On the subject of reasonable adjustments, the Tribunal noted that four such adjustments were sought by the Claimant, of which the fourth (a stress risk assessment) was not a practical step and could be discounted.  The other three were (1) adjusting the “triggers” in the Respondent’s Absence Monitoring Policy (“AMP”); (2) discounting certain absences for the purposes of applying the AMP, treating those absences as disability related; and (3) allowing a flexible start time each morning with up to 15 minutes of leeway up to 9am, instead of a fixed start time of 8.45am.

 

17.              The Tribunal found (paragraph 163) that two “PCPs” (provisions, criteria or practices) were applied by the Respondent: first the AMP, and secondly, the requirement to attend work by 8.45am.  These PCPs were applied to staff generally, irrespective of any disability. 

 

18.              The Tribunal found (paragraph 164) that the AMP did not place the Claimant at any relative disadvantage arising from her narcolepsy, since none of the absences which had prejudiced her position were related to her narcolepsy.  Her mental impairment from April 2013 onwards, on the other hand, had put her at a disadvantage relative to the position of non-disabled employees, since it had caused the “triggers” within the AMP to be activated in her case.

 

19.              But the Tribunal found that the other PCP, the 8.45am start time, had placed her at a disadvantage relative to the position of other non-disabled employees, which disadvantage was related to both her disabilities (narcolepsy and mental impairment) from April 2013 onwards, since both those conditions had made it more difficult for her than non-disabled employees to arrive at work by 8.45am.

 

20.              The Tribunal found (paragraphs 165 to 168) that from May 2013 onwards the Respondent ought to have known of the Claimant’s relative disadvantage arising from the 8.45am start time, and did know of it from September 2013.  This was by reference to the Claimant’s narcolepsy.

 

21.              So far as the Claimant’s mental impairment was concerned, the Tribunal found that the Respondents neither knew nor ought to have known of the Claimant’s disability through mental impairment, which had subsisted from April 2013.

 

22.              Accordingly, the Tribunal held (paragraph 167) that the Respondents succeeded in their submission that the duty to make reasonable adjustments in relation to the application of the AMP did not arise.  Those proposed adjustments were, it will be recalled, firstly adjusting the “triggers” in the AMP and secondly, discounting certain absences for the purpose of applying it, those absences being disability related.

 

23.              The Tribunal went on to state (paragraph 168) that if the duty to make reasonable adjustments had arisen in relation to those first two proposed adjustments, the Tribunal would have decided that it would not have been reasonable for the Respondents to have to make those adjustments.  This was for two reasons: first, because the Tribunal found that there was adequate provision in the AMP itself to take account of disability related absences in informing the exercise of discretion within the AMP; and secondly, because:

“168. … as we have not found the claimant’s absence was disability related until April 2013, and … the absences that caused the triggers and referrals to governors were not disability related, the adjustments sought would not have substantially avoided the disadvantage the claimant faced.”

 

24.              The Tribunal went on to decide (paragraph 169) that the duty to make reasonable adjustments did arise in relation to the disadvantage to the Claimant as a result of her narcolepsy, from September 2013, by reason of her obligation to comply with the 8.45am start time.  However, the Tribunal decided that the demands of a school are such as to require the physical presence of staff at particular times because of the vulnerability of children and the requirement that they be supervised.  The Tribunal therefore found that that aspect of the claim did not succeed.

 

25.              The Tribunal decided (paragraphs 172 to 175) that the complaint of discrimination under section 15 of the 2010 Act, of unfavourable treatment because of something arising in consequence of a disability, did not succeed.

 

26.              The Tribunal found, first, that unfavourable treatment because of absence in consequence of a proven disability was not made out on the facts at the time in March 2012 when the AMP was formally applied to the Claimant.

 

27.              The Tribunal went on to decide that, in relation to the application of the AMP to the Claimant from April 2013, the complaint under section 15 could not succeed because, as the Tribunal had already decided (in paragraphs 165 to 167) the Respondents did not know and could not reasonably have known of the Claimant’s disability through mental impairment.

 

28.              The Tribunal went on to find that the Claimant’s dismissal in October 2013 undoubtedly constituted unfavourable treatment which, moreover, could be said to be disability related for the purposes of section 15, but that:

“174. … as found above, in all the circumstances of this case we have found that while there was panel discussion both of the May occupational health advice, and of the claimant’s own perspective on her mental health, the panel did not know she was disabled by reason of mental impairment when they decided to dismiss her, and the claim must fail.”

 

29.              The Tribunal went on to state (paragraph 175) as follows:

“175. Had we decided that the panel had known in October 2013 that the claimant was disabled by reason of mental health impairment, we would have decided for the reasons explained below in relation to the legitimate running of a school, that the claimant’s dismissal, sadly, was a proportionate means of achieving a legitimate aim.”

 

30.              The permitted grounds of appeal were as set out in an Order I made in this case following the Preliminary Hearing, on 11 November 2015.  They are as follows

1. Whether the Tribunal applied the wrong test in determining the issue of mental impairment disability and in particular the time from which that was established.

2. Whether that error, if made, infected the reasoning and conclusions reached in respect of following further issues:

(1) Timing and content of any reasonable adjustments;

(2) Actual or constructive knowledge in context of the section 15 claim and the sections 20 and 21 claims.

3. Whether the Tribunal, in approaching the section 15 claim, erred in law by:

(1) Failing to address the question of constructive knowledge;

(2) Deciding (as an alternative to its primary decision) that the Appellant’s dismissal was a proportionate means of achieving a legitimate aim.

 

31.              Mr O’Dempsey ran all those grounds of appeal.  The first raised the issue of whether the Tribunal applied the wrong test in determining the issue of mental impairment disability and in particular the time from which that was established.  Mr O’Dempsey submitted as follows.

 

32.              By section 6(1)(b) of the 2010 Act a person has a disability if her (physical or mental) impairment “has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities”.  By section 6(6), Schedule 1 has effect.

 

33.              Schedule 1 paragraph 2(1) provides that the effect of an impairment is long-term if it has lasted for at least 12 months, or is likely to last for at least 12 months, or is likely to last for the rest of the person’s life.

 

34.              Paragraph 2(2) provides:

“(2) If 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 is likely occur.”

 

35.              The above is uncontroversial.  It is also common ground that “likely to recur” means that the effect “could well” recur: SCA Packaging Limited v Boyle [2009] ICR 1056 HL, per Lord Rodger at paragraph 42, per Baroness Hale at paragraph 70.

 

36.              Schedule 1 paragraphs 5(1) and (2) require, materially for present purposes, that an impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if it would have that effect but for relevant medical treatment.  This is sometimes referred to as a “deduced” effect in a case where what would be the effect is suppressed by medication or other relevant treatment.

 

37.              Mr O’Dempsey reminded me that in J v DLA Piper UK LLP [2010] ICR 1052, Underhill P (as he then was) stated at paragraph 40 that a Tribunal may, in a case such as this where there is a dispute about the existence of an impairment, “start by making findings about whether the Claimant’s ability to carry out normal day-to-day activities is adversely affected (on a long-term basis), and to consider the question of impairment in the light of those findings”. 

 

38.              As for the issue of whether the effect of an impairment is “likely to recur” (i.e. “could well” recur), Mr O’Dempsey referred me to the Decision (on the papers) of Her Honour Judge Eady QC, in this Appeal Tribunal, in Chief Constable of Sussex Police v Millard (transcript, 22 February 2015, UKEAT/0341/14/DA) at paragraph 7 where she said this:

“7. The question for the ET was, therefore, whether - on a predictive basis - the effect of the Claimant’s impairment was likely to last for at least 12 months based on the evidence of circumstances prevailing at the date of the discriminatory act relied on, not subsequent events. …”

 

39.              It was Mr O’Dempsey’s submission that if the Tribunal in this case had correctly applied the law and, in particular, the predictive approach in a case raising an issue of likelihood of recurrence, the Tribunal would have, and should have, found that the Claimant had a mental impairment disability with effect from, at the latest, February 2012 instead of April 2013.  It was in February 2012 that the Claimant discovered the existence of the disturbing accounts from Spain of what had happened to certain babies there in the early 1990s.

 

40.              The Tribunal recorded the Claimant’s discovery of this at paragraph 44 of its Decision, found at paragraph 45 that the Claimant was “distraught over the weekend of 17 February 2012” and told Mr Watt about the matter on 20 February 2012, following which she was absent from work until 27 February.

 

41.              Mr O’Dempsey criticised the reasoning of the Tribunal set out in paragraphs 149 to 161 under the heading “Mental Impairment”.  He said, first, that the Tribunal had fallen into the error of asking itself not whether the impairment was likely to recur, but whether its effects were likely to recur.  He pointed to the following in paragraph 151:

“151. It is convenient to deal with the recurrence issue first.  We accept that the claimant suffered depression in the early 1990s in Spain.  On the basis of medical notes from 2007 onwards, good attendance at school until February 2012, the claimant’s oral evidence and that of Dr Webb, the claimant has not proven that from autumn 2011 it could be said that depression may very well recur, such as to engage paragraph 2(2) of Schedule 1 to bridge the gap between the early 1990s and the material dates.  Nobody could have known, and the claimant has not proven, that at the start of the management of the claimant’s absence she would be struck by the personal catastrophes recorded above and that depression “may well recur”.”

 

42.              Mr O’Dempsey submits that this paragraph demonstrates that error.  He reminded me that Judge Richardson in Swift v Chief Constable of Wiltshire Constabulary [2004] ICR 909 stated (at paragraph 34):

“34. … The question for the tribunal is whether the substantial adverse effect is likely to recur, not whether the illness is likely to recur.”

 

43.              Mr O’Dempsey went on to submit that the Tribunal here, in paragraph 155, made a finding that the Claimant had proved substantial adverse effects arising from her mental impairment “intermittently from March of 2012”.  He submitted that the word “intermittently” must mean that after March 2012 those effects ceased and that it thereupon became incumbent on the Tribunal to ask itself the predictive “likely to recur” question required by paragraph 2(2) of Schedule 1.  He submitted that the Tribunal then failed to do so.

 

44.              Furthermore, Mr O’Dempsey contended that it was wrong for the Tribunal to deal with the likelihood of recurrence issue first, as it avowedly did in paragraph 151 of the Decision.  He submitted that, while the focus of paragraph 151 is on the likelihood of depression recurring and not its effects, the effects thereof were dealt with separately in paragraph 152 of the Decision and the following paragraphs.  In paragraph 158, the Tribunal said this:

“158. At what point, if any, could it be said that those effects had lasted or may well last 12 months or more?  Again, by the time of the claimant’s upset and visit to her GP in April 2013, the claimant had been suffering effects for a year, and at that point, in the Tribunal’s judgment, although unnecessary, it could reasonably be said that looking forward the effects would be likely to continue for a year or more.”

 

45.              Mr O’Dempsey criticised that reasoning, saying that the reference to the finding being “unnecessary” betrayed the error in the Tribunal’s approach; it was necessary to consider the predictive question, but in relation to February 2012, not later.

 

46.              Mr Wilkinson, for the Respondent, countered those arguments as follows.  He accepted that the language and drafting of the Decision was not perfect, but reminded me that Decisions of Tribunals (as this Appeal Tribunal and the Court of Appeal have said many times) should not be subjected to close textual analysis in an attempt to discern error where a more liberal reading reveals none (cf. Swift v Chief Constable of Wiltshire Constabulary per Judge Richardson at paragraphs 42 and 48).

 

47.              Mr Wilkinson submitted that, read properly, the Tribunal concluded at paragraph 156 that the substantial adverse effects of the Claimant’s disability were continuous and not intermittent as from March 2012.  Thus, the Tribunal said this at paragraph 156:

“156. On balance we consider that where an individual with a complex medical condition such as narcolepsy, about which she makes little medical complaint, also seeks out medical help from her GP for mental impairment, having suffered depression in the past; and that care is provided both in the form of medication for anxiety and depression, and counselling, over an extended period, a Tribunal can conclude, on the balance of probabilities, that without treatment the effects on the claimant would certainly have been more than minor or trivial from March 2012, ongoing to the time of the claimant’s dismissal. …”

 

48.              Mr Wilkinson contended that in the light of that finding, the Tribunal could not be taken to have found that any impairment of the Claimant had ceased (within paragraph 2(2) of Schedule 1) to have a substantial adverse effect.  Mr Wilkinson said that this interpretation of the Decision explains why the Tribunal stated at paragraph 158 that it was “unnecessary” to address the issue of the point in time at which it could be said that the effects of the Claimant’s impairment “had lasted or may well last 12 months or more”.

 

49.              Mr Wilkinson accepted that the phrase “she has proven those effects intermittently from March of 2012” (paragraph 155) do raise an issue about the correctness of the Tribunal’s approach; but he suggested that the Tribunal may be taken to mean that the effects from March 2012 were not just intermittent but, over and above that, continuous.

 

50.              In addition, Mr Wilkinson emphasised that the Tribunal had not clearly attributed the effects on the Claimant from March 2012 to mental impairment, as opposed to a normal grief reaction to an adverse life event, complicated by narcolepsy.  Indeed, the Tribunal had alluded at some length and with care to the difficulty in disentangling the attribution of the adverse effects on the Claimant to one cause rather than another.

 

51.              In this regard, submitted Mr Wilkinson, the Tribunal referred to the subtlety of diagnostic issues in a case such as this where two different health problems co-exist; the absence of any expert evidence beyond that of the Claimant’s GP; and the absence of an underlying unified diagnosis.  On the latter point, the Tribunal referred at paragraph 159 to the “Piper footnote”.  That was a reference to endnote number 5 in the notes appended to the Judgment of Underhill P in J v DLA Piper UK LLP.

 

52.              Underhill P referred at paragraph 33(3) to the distinction between clinical depression, which would be an impairment, and symptoms of low mood, not being symptoms of depression.  At paragraph 42 he described the latter as “not characterised as a mental condition at all but simply as a reaction to adverse circumstances … o r… ‘adverse life events’”.

53.              At that point the Judge inserted note number 5[1] which, at the end of the Judgment, reads:

“But NB that “clinical” depression may also be triggered by adverse circumstances or events, so that the distinction can not be neatly characterised as being between cases where the symptoms can be shown to be caused/triggered by adverse circumstances or events and cases where they cannot.” (Original emphasis)

 

54.              Here, the Tribunal referred to that footnote and then said at paragraph 159:

“159. … It may well be that without a unifying diagnosis and in view of two tragic matters impacting the claimant, a Tribunal could properly conclude that the effects experienced by the claimant were either a “normal grief reaction” which was not likely to last 12 months or more, and/or that there was no mental impairment satisfying the condition questions.”

 

55.              As for the Tribunal’s use of the phrase in paragraph 151: “the claimant has not proven that from autumn 2011 it could be said that that depression may very well recur”, Mr Wilkinson submitted that this was merely shorthand for “the effects of the depression may very well recur”; and that, reading the Tribunal’s reasoning as a whole, no error in its approach is revealed by the use of that slightly infelicitous language.

 

56.              In the light of those points made by Mr Wilkinson, he argued that the Tribunal’s reasoning was sound and its conclusion, that mental impairment was not shown by the Claimant to have amounted to a disability within the 2012 Act until April 2013, is unassailable and not to be disturbed.

 

57.              I come now to my reasoning and conclusions on the first ground of appeal.  I start from the proposition that the legislation is notoriously complex and difficult to apply, even for an experienced Tribunal such as this one.  In addition, the difficulties the Claimant has, unfortunately, had to endure during her life, and the complex interaction of those difficulties with the medical conditions and symptoms thereof which she has experienced, combined to make this case factually as well as legally complex.

 

58.              I consider that, with respect, the Tribunal’s Decision is generally speaking clearly articulated and well expressed.  One does not have the impression of a Tribunal that is out of its depth when performing its difficult task.

 

59.              There is no doubt that the Tribunal understood the law.  It correctly and appropriately referred to the applicable provisions in the 2010 Act, the Code and the relevant authorities.  This makes it less likely, though obviously not impossible, that the Tribunal fell into error when applying that body of law to the facts.

 

60.              I have come to the conclusion, after careful reflection, that the Tribunal did not err in its approach to the mental impairment disability, and when it began.  My reasons are, briefly, as follows.

 

61.              After analysing the evidence relating to the Claimant’s narcolepsy (paragraphs 142 to 147), the Tribunal concluded at paragraph 148 that she had established narcolepsy as a physical impairment within the 2010 Act.  In the course of the reasoning leading to that conclusion, the Tribunal dealt with the effects of her narcolepsy, which included the period between March 2012 and April 2013.  It is clear that the Tribunal found that narcolepsy had an adverse effect on the Claimant’s work.

 

62.              The Tribunal then began its analysis of the issue of mental impairment disability (paragraphs 149 and 150) by noting that there was no unifying mental health diagnosis, the Claimant’s mental health was complex and the Tribunal had heard no independent expert medical evidence.  The Tribunal observed (paragraph 150) that the issues may be “too subtle for the GP notes alone to assist the Tribunal [sic] answer the relevant questions”.

 

63.              It is true that the Tribunal might have done better not to consider the “recurrence issue” first, as it did in paragraph 151.  That issue only arises under paragraph 2(2) of the Schedule 1 as necessary for the decision, if the Tribunal finds that an impairment has not lasted for at least 12 months or is not likely to do so (paragraph 2(1)).

 

64.              True it is also that the use of language in paragraph 151 (“depression may very well recur”) is infelicitous.  But I consider that the Tribunal well understood the difference between a condition being likely to recur and its effects being likely to recur.  Even if that distinction was not consciously in the Tribunal’s mind, the Tribunal’s treatment of the evidence was correctly focussed on the effects of depression and not on its nature and existence.

 

65.              This is clear from the discussion of those effects in paragraphs 153 to 155.  It is also clear from the Tribunal’s use of language in the first sentence of paragraph 158 which reads:

“158. At what point, if any, could it be said that those effects had lasted or may well last 12 months or more? …”

 

66.              Next, I accept Mr Wilkinson’s submission that the use of the word “unnecessary” in the same paragraph, paragraph 158, indicates that the Tribunal decided it did not need to address the “likelihood of recurrence” issue.  It follows that its treatment of that issue in paragraphs 151 and 158 was obiter.

 

67.              The Tribunal’s discussion of the evidence of day-to-day effects at the material times is contained within paragraphs 152 to 157.  They described that evidence as “disparate”, but the main points were these:

(1) Mental impairment was certainly in the Claimant’s mind from February 2012 when she learned of events in Spain in the 1990s.

(2) There were absences between September 2012 and September 2013 attributed by her GP to mental health problems.  During one of these, in November 2012 her partner, sadly, committed suicide.

(3) By the spring of 2013 the Claimant was diagnosed as suffering from depression in the notes of her GP.

(4) The Claimant’s performance at work was badly affected; she operated in a “fog” but it was difficult to separate the effects of narcolepsy from those of depression.

(5) The combined effect of school holidays in the academic year 2012-2013 and the Claimant’s absences meant that she was at the school for only about half the time.

 

68.              It was in that context that the Tribunal stated in paragraph 155 that the Claimant had proven “effects on her ability to concentrate and complete ordinary tasks like writing and leaving the house in the morning; she has proven those effects intermittently from March of 2012”.  The Tribunal went on to say that it accepted that there was “some fluctuation in effects and a difficulty in discerning between the effects of physical (narcolepsy) and mental impairment in this unusual case”.  The Tribunal went on to note again that it did not have expert psychiatric evidence to help with the “deduced effects” issue in relation the mental health.

 

69.              I do not think that the word “intermittently” in paragraph 155 denotes, as Mr O’Dempsey submitted, a finding that the Claimant’s depression ceased to have a substantial adverse effect on the Claimant’s ability to carry out normal day-to-day activities, triggering the enquiry ordained by paragraph 2(2) of Schedule 1.  It seems to me that the Tribunal was merely referring to evidence that she had good days and bad days, was sometimes at work and often not at work and that the “fluctuation in effects” was difficult to attribute in the absence of independent expert psychiatric evidence.

 

70.              Having thus discussed the evidence, in paragraph 156, it seems to me that the Tribunal was positing the outcome for which the Claimant contends.  The Tribunal accepts that position as one that could perhaps be accepted.  However, when one reads on at paragraph 159, the Tribunal posits the opposite conclusion, by reference to the “Piper footnote”, and the equally proper conclusion that the effects before April 2013 were in part a normal grief reaction unlikely to last 12 months or more, and in part attributable to narcolepsy.

 

71.              Ultimately the Tribunal then reaches the conclusion at paragraph 160 that it prefers the latter to the former analysis.  Hence its statement that the circumstances here “appear to us to be the paradigm of the situation envisaged by the Piper footnote”.  That is to say, the Tribunal ultimately found that this was a case where the symptoms could not, until April 2013, squarely amount to a mental impairment.

 

72.              For those reasons, I reject the first ground of appeal.  The Tribunal’s treatment of the issues, and its use of language, does give rise to difficulties of interpretation which merited the attention of the Appeal Tribunal, but I am not persuaded that there was any error of principle or law in the Tribunal’s approach.

73.              In the second ground of appeal, the Claimant contends that the error in its approach, contended for in the first ground of appeal, led to consequential further errors in the reasoning and conclusions of the Tribunal in respect of (1) the timing and content of any reasonable adjustments; and (2) actual or constructive knowledge in the context of (a) the claims for discrimination because of something arising in consequence of the Claimant’s disability (the section 15 claim), and (b) the claim for breach of the duty to make reasonable adjustments (under sections 20 and 21).

 

74.              In view of my conclusion that the first ground of this appeal is not made out, the second ground does not arise for decision.  I will therefore address this ground only briefly.

 

75.              Mr O’Dempsey submitted that, if the Claimant was disabled by mental impairment from early 2012 and not April 2013, the content of the duty to make reasonable adjustments would, or might well, on the facts have been different.  Mr Wilkinson accepts this point in principle, but not on the facts.

 

76.              He accepts that the “substantial disadvantage” test in section 20(3) by comparison with non-disabled persons, could in principle have been met earlier if the mental impairment disability had subsisted from earlier.  However on the facts, Mr Wilkinson submits that the result could in practice have been no different because the Tribunal’s findings about the Respondent’s actual and constructive knowledge of the Claimant’s disabilities, are unimpeachable and would have been the same.

 

77.              Mr O’Dempsey sought to counter that argument by submitting that, if the Tribunal had found that the Claimant’s mental impairment disability had subsisted from over a year earlier than its actual finding, it would have analysed the evidence pointing to constructive knowledge in a different way and might have reached a different conclusion.

 

78.              That, however, seems to me extremely unlikely.  The way in which the Claimant presented to her employer, the Respondent, was extensively discussed in the Tribunal’s Decision as I have already indicated.  The evidence of what was apparent to the Respondent and when, would not have been any different even if the Tribunal had decided that the statutory test of disability by reason of mental impairment was met earlier than it in fact decided it was met.  So I do not think that the second ground of appeal would have been well founded even if I had been disposed to accept the Claimant’s submissions on the first ground.

 

79.              I turn, finally, to the third ground of appeal, which is that the Claimant misapplied section 15 of the 2010 Act in two ways: first, in deciding the issue of the Respondent’s constructive knowledge (the issue arising under section 15(2)); and secondly, by accepting, as an alternative basis for its decision, that dismissal of the Claimant was a proportionate means of achieving a legitimate aim (the issue arising under section 15(1)(b)).

 

80.              However, Mr O’Dempsey’s submission under the third ground proceeded, once again, from the premise that the Claimant’s mental impairment disability started over a year earlier than the Tribunal found it did.  So, once again, the premise is not made out and the issue does not arise for decision and can therefore be dealt with briefly.

 

81.              The Claimant’s case on the Respondent’s constructive knowledge of her disability, is not improved by raising that case in relation to section 15(2) of the 2010 Act, rather than for the purposes of the reasonable adjustments duty dealt with in section 20.  Once again, a finding that the mental impairment disability started over a year sooner than the Tribunal found it did, would not have affected the evidence of the Claimant’s condition as that presented itself to the employer.  I do not accept that the Tribunal’s findings on constructive knowledge would have been any different if the first ground of appeal had succeeded.

 

82.              Furthermore, the Tribunal’s findings in relation to actual and constructive knowledge of the Claimant’s disability, are not themselves open to criticism, as they are cogent and reasonable.

 

83.              As for the Tribunal’s conclusion that dismissal of the Claimant was a proportionate means of achieving the legitimate aim of running the school effectively (see paragraph 175 of the Decision), it seems to me far fetched to assert that the finding could conceivably have been any different had the mental impairment disability been acknowledged as existing from over a year earlier than the Tribunal found.

 

84.              Accordingly, the reality in this appeal is that it stands or falls on the first ground which, after reflection, I have found not made out.  The second and third grounds cannot, in practice, succeed unless the first ground first succeeds, and it does not.

 

85.              For those reasons, although I have great sympathy for the Claimant’s sufferings which have been enormous, this appeal must fail.