HERTFORDSHIRE SOCIAL SERVICES v MR D R GREENWOOD [1999] UKEAT 1283_99_0712

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 1283_99_0712

Case No Appeal No. EAT/1283/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

HERTFORDSHIRE SOCIAL SERVICESAPPELLANT

MR D R GREENWOODRESPONDENT

Before

His Honour Judge A Wilkie

Date 7 December 1999

[1]APPEARANCES For the Appellants MRS L GOLDMAN (of Counsel) Instructed by: Mr A Laycock County Secretary & Solicitor Hertfordshire County Council County Hall Pegs Lane Hertford SG13 8DF For the Respondent MS G LAHNSTEIN (Representative) JUDGE WILKIE QC : This is an appeal by Hertfordshire Social Services against an interlocutory decision of the Employment Tribunal sitting at Bury St Edmunds after a hearing which took place on 16th September 1999. The decision is dated 8th October 1999 was sent to the parties the following day:

"The unanimous decision of the Tribunal is that the applicant suffered from a disability within the meaning of the 1995 Disability Discrimination Act at the relevant time and the complaint of discrimination on grounds of disability can proceed to a full hearing on a date to be fixed."

The appeal was launched by a Notice of Appeal dated 17th November 1999. In that Notice of Appeal the appeal is put on two bases:

"(a) The decision is said to be wrong in law in applying the criteria of current disability to a condition in the past, and (b) It is wrong in its application of the facts and therefore perverse in that in determining whether the Applicant was disabled at the relevant time, it overlooked the Applicant's clear ability to remember facts and to carry out normal day to day activities, as stated in evidence."

[2]The interlocutory appeal gave rise to a respondent's answer dated 22nd November, received by the Employment Appeal Tribunal on 24th November.

[3]The hearing of this interlocutory appeal was fixed by this tribunal on 23rd November, that is to say just under two weeks ago.

[4]The respondent's representative to the appeal, Ms Lahnstein, submitted a skeleton argument in support of her contentions under a cover of a letter of 23rd November. The appellant, apparently under the misapprehension that this was a preliminary hearing, therefore ex parte, rather than an inter partes interlocutory hearing, did not furnish either Ms Lahnstein nor this tribunal with either a chronology or a skeleton argument until this morning, 7th December. That is in contravention of the Practice Direction which requires skeleton arguments to be exchanged by the parties and copies served on the Employment Appeal Tribunal not less than two weeks before the date fixed for the hearing of the full appeal. The respondent to the appeal therefore has applied today in the light of that non-compliance that we should dismiss this appeal on that procedural ground.

[5]At the outset of today's hearing, we indicated that we had not yet formed any view as to whether we should accede to that application. We indicated that we were prepared, pending that decision, to allow Mrs Goldman, Counsel representing the appellant, to develop the arguments which she wishes to develop in the course of appeal and set out in her skeleton argument. At the end of her submission we would consider whether we were to accede to Ms Lahnstein's application, if not, whether we needed to hear from her substantively and, if we did, whether we should give her an opportunity of an adjournment in order to develop arguments based on the very late served skeleton argument.

[6]In addition to that procedural matter, Mrs Goldman indicated at the outset of her argument that she wished to place before this Tribunal a document which had not been before the Employment Tribunal, namely a document which now appears at 166 of our bundle. This document is a sick note dated 1st October 1998 excusing the respondent from work for a period of three months for a stress-related illness. She acknowledged that this was a document which was in the possession of the appellant at the date of the Employment Tribunal hearing and, therefore, was available to be placed before the Employment Tribunal, she sought to argue that it was a significant document casting light on the variability of the illness or the condition suffered by the respondent during the relevant period.

[7]Ms Lahnstein, as of course she was entitled to do, took objection to that document being placed before this tribunal. Once again, we indicated, without at that stage ruling on its admissibility before us, that we would permit Mrs Goldman to place it before us and develop her arguments upon it.

[8]The Employment Tribunal in its decision set out the history of the respondent's employment with the appellant to date in paragraphs 3 to 6 of its decision. That history culminated, as far as his attendance at work was concerned, with his being certified medically unfit to attend work from 26th November 1997 for illnesses described on the medical certificates as being "stress-related illness" and he has not returned to work since then.

[9]At paragraphs 7 to 13 of the decision the tribunal set out, in summary terms their findings of fact both as to the nature and progress of this condition, the particular symptoms from which he suffered from time to time and the history of his various forms of clinical treatment and examinations by various doctors for different purposes. In particular, in paragraph 7 they set out their findings as to the impact of his condition upon his day to day life. In paragraph 12 of the decision the tribunal sets out at some length the findings of Dr Balan who, on 4th December 1998, examined him for a different purpose, namely what form of State Allowances he should receive. Each of these paragraphs set out in stark terms the impact of his condition upon his ability to live a normal day to day life.

[10]At paragraphs 14 and 15 of the decision, the tribunal summarised the submissions made respectively by the appellant and respondent before it. In particular, they noted that Ms Lahnstein was seeking to argue that the respondent's disability had lasted from 1995. She drew the attention of the tribunal to the International Classification of Diseases and in particular F43 and F32.

[11]In paragraph 15 the tribunal record the submissions of Mrs Goldman on behalf of the appellant to the effect that the respondent did not suffer from a disability. In the course of that, the tribunal record her conceding that "the applicant's present condition may fall within a medical impairment as described in F43 of ICD" but that her submission that he "was not suffering from this at the time he ceased working on 17 November 1997". She also submitted that the time when disability has to be addressed, is the time when the allegations of discrimination on that ground rose, that being either October or November 1998. The tribunal also records in paragraph 15 points which she sought to make about the respondent's contribution to a meeting in April 1998 about questions of sick pay and mileage allowance; her contention that the medical certificates related only to stress-related illness, whereas a medical report of 9th June 1998 from his own GP referred to him suffering from " mild depression"; and the difference between those two. Also it recorded her submission on evidence to the effect that the respondent continued to go fishing and helped to fix Ms Lahnstein's car.

[12]In paragraphs 16 to 19 of the decision the tribunal sets out carefully and, we find, accurately the various statutory provisions, the sources of guidance - both in terms of decided case law and guidance notes - and identified the questions which it had to pose and decide.

[13]Mrs Goldman accepts that in those paragraphs the tribunal has set out fully and accurately the various stages which the tribunal had to go through in order to come to its decision and she makes no criticism of their formulation. In particular, as far as the concept of long-term effect is concerned, the tribunal refer accurately to the tripartite test for measuring the duration of long-term. In construing the second limb in which that test is formulated, namely if the period for which it lasts is likely to be at least 12 months, it recorded accurately the guidance notes at paragraphs B7 and 8. Those paragraphs address the proper approach to the word "likely". It is "likely" if it is more probable than not it will happen. It also correctly states that in "assessing the likelihood of an effect lasting for any period, account shall be taken of the total period for which the effect exists including any time before the point when the discriminatory behaviour occurred as well as time afterwards".

[14]In paragraph 20 the tribunal set out, in summary terms, their findings. First they concluded against the respondent and contrary to the submissions otherwise of Ms Lahnstein that prior to November 1997 the respondent was "not suffering from a physical or mental impairment which had a substantial and long-term adverse effect on his ability to carry out day-to-day activities". By way of contrast however, the tribunal record their conclusion that they were satisfied that "as at October and November 1998 the applicant suffered from a disability within the meaning of the Act". October and November 1998 were the dates when the discriminatory events are said to have occurred.

[15]The tribunal, in succeeding paragraphs, amplified that conclusion by dealing separately and specifically with the various elements of the statutory definition of disability. It is each of these sections in their decision, which Mrs Goldman seeks to attack.

[16]As far as mental impairment is concerned, the tribunal summarised their conclusions in paragraphs 21 and 22 of the decision. In particular, they refer to the GP's medical report dated 29th March 1999. That report sets out the history of the matter and, in particular, refers back to the Spring of 1998. In or about April 1998, after having unsuccessfully being referred to counselling, Mr Greenwood was referred by the GP to a consultant psychiatrist at Watford General Hospital. The tribunal quotes in terms the diagnosis as of April 1998 as recorded in the report of 29th March 1999, namely "an adjustment disorder with mixed features of depression and anxiety with a slightly paranoid personality". The tribunal concluded that this "diagnosis is borne out by subsequent medical pronouncements". They refer, briefly, to those subsequent medical pronouncements.

[17]In paragraph 22 the tribunal address the question whether that diagnosis is "a clinically well recognised illness". They referred to the International Classification of Mental and Behavioural Disorders already referred to, and concluded, as seems to us entirely correctly, that the condition described in paragraph F43.22 is one which is recognisably that which was diagnosed in April 1998. On that basis, they concluded that Mr Greenwood, as of October/November 1998, suffered from mental impairment.

[18]Mrs Goldman really seeks to dispute this conclusion by referring to the fact that at various times on medical certificates the condition is described differently, sometimes as "depression", sometimes as "a stress-related illness" and it is in respect of this particular difference in description that she seeks to introduce the medical certificate of 1st October 1998 which is a reversion to the description as "stress-related illness" after a description of the illness as being "depression", in May 1998 prior to which the certificates had referred to it being a "stress-related illness".

[19]In our judgment, that document adds nothing whatsoever to the chronology. It is perfectly clear that this tribunal were acting on and basing their factual conclusions on the consultant psychiatrist's diagnosis in April 1998, which predates any description of the condition as "depression". It is plain to us that what the medical certificates are describing, very much in shorthand, throughout is exactly the same condition, albeit applying a slightly different label to it from time to time. Therefore, our conclusion is that that document really is neither here nor there. It should have been placed before the tribunal if it had been sought to rely on it, and we decide that it is inadmissible.

[20]The second basis for attacking this part of the decision is the assertion that in paragraph 21 the tribunal appear to have confused medical reports of June 1998 and March 1999. In our judgment there is nothing in that. The tribunal, in paragraph 21, referred specifically to the report of 29th March 1999. It is plain from its terms that in describing the history of the clinical treatment of Mr Greenwood it was referring back to the period around about April 1998 when he was referred to the consultant and what the tribunal have quoted is a direct quote from that letter of 29th March 1999. Therefore, there is simply no question of the tribunal either being confused or being woolly in their expression or conception. In our judgment there is nothing in this point. In truth it is a perversity point, which falls a long way short of succeeding.

[21]The second step in the tribunal's consideration of whether the statutory definition was satisfied is where they considered whether the mental impairment had a substantial adverse effect on Mr Greenwood's ability to carry out normal day to day activities. That is set out in 22(b) of the decision following on as part of paragraph 22. In subparagraph (b) the tribunal describes what they find as to the impact of his illness upon his day to day life. In so doing they explicitly say that they "accepted entirely the evidence of Ms Lahnstein and the applicant" in those respects. They addressed specifically the points that had been made by Mrs Goldman, namely that his mental impairment did not have a substantial effect on his ability to carry out normal day to day activities by reason of the fact of his being able still to carry on servicing Ms Lahnstein's car and the continuation of his fishing activities. In particular they refer to the fact that he was driving to the location where he fished, as well as, the contention that in the April 1998 meeting with the appellant he was able to make points notwithstanding the fact that he was also saying that he was unable really to follow on what was going on very successfully.

[22]The tribunal has addressed all these arguments. They have come to clear findings on the evidence, which was placed before them. The tribunal has concluded that what they described was the impact of his mental impairment, which affected his normal day to day activities, and it was not minor or trivial but was substantial.

[23]In essence, the main thrust of Mrs Goldman's contention is that this is simply a perverse conclusion, bearing in mind the evidence that was before the tribunal. In our judgment, it falls very far short of being a perverse finding. The tribunal preferred the evidence of Ms Lahnstein and the respondent. They dealt with the points that were raised by Mrs Goldman and therefore cannot be said to have ignored them. In our judgment, therefore, their findings were findings of fact, which they were entitled to come to.

[24]There is however a subsidiary point which it may be amounts to a question of law or approach. Reference has been made by Mrs Goldman to the recent decision of Quinlan v B & Q plc [1999] IDS 76 . That is a decision to the effect that where the content of a person's job requires unusual levels of activity, the fact that the person by reason of their medical condition can no longer undertake that special level of activity but can nonetheless continue to undertake normal day to day activities, in those circumstances does not satisfy the statutory test. The test does not address the particular requirements of a job as comprising part of normal day to day activities. It is normal day to day activities in general which is in issue, not the particular "day to day" requirements for a particular person of a particular job. It does appear from the evidence in this case that the trigger for Mr Greenwood's decline in his capacities was the undue stress placed upon him by either his job or the particular conditions of his working. That much appears clear and is recorded in the tribunal's various findings in respect of the history of the matter. However the tribunal made as findings of fact in this particular paragraph not merely that he was unable to do the job for which he was employed, because the peculiar conditions of which had been the trigger for his medical condition, but rather that this trigger had had an adverse impact upon his ability to do other normal day to day activities such as were graphically described in the history of the matter. We therefore conclude that the case of Quinlan is wholly distinguishable from this particular case and that no assistance is to be gained by looking at it or applying it. Therefore our conclusion is that this particular ground of attack does not succeed.

[25]The final element in the statutory definition of disability, which the tribunal addressed, was whether the substantial adverse effect was "long-term". In that respect Mrs Goldman had submitted that the tribunal should look at the position at the date of the alleged discrimination in October and November 1998 and ignore what had happened afterwards.

[26]The tribunal on the face of its decision accepted that submission and asked themselves what the position was as at that date. They addressed that question as being an objective test not being concerned with what the respondent knew at that particular stage in the proceedings.

[27]Mrs Goldman in her skeleton indicated tangentially that that was an erroneous approach. It does not appear in her Notice of Appeal. She does rely in support of this contention on a particular sentence in an Industrial Tribunal case, which was placed before the tribunal, that is the case of C Hill v Lister Petham Limited .

[28]We have looked at the statutory provision. We have also looked at the guidance notes, in particular Section B. Mrs Goldman has not been able to point us to anything in either the statute or in the guidance note which indicates that it is a subjective test which has to be applied, namely what did the respondent know. There is of course a subjective element in considering under s. 5 of the 1995 Act whether there has been discrimination because s.5 deals with discrimination which cannot be justified and it may be that at that stage state of knowledge is a factor to be determined. As far as satisfying or not the statutory definition of disability, and in particular the question of whether mental impairment has a long-term adverse effect, we are perfectly satisfied that the test is an objective one and in this particular case the tribunal was correctly applying the second limb of the statutory test, is "the period for which it lasts is likely to be at least 12 months." In so doing, the tribunal, in paragraph (c) did look at the position as of 13th October 1998. It concluded, as it already had, that from the November previously Mr Greenwood had been suffering from mental impairment and that that was a period of some ten or eleven months. The tribunal considered the evidence available at the time, from the reports of the respondent's own medical adviser in September 1998 and Mr Greenwood's GP on 14th September 1998. In each case they were saying that he was unlikely at best to return "in the very immediate future" to work. In the light of that and applying the guidance note and the approach to the word "likely", the tribunal concluded that the statutory test was satisfied. Indeed at the conclusion of that paragraph what they say is this:

"22(c) Long Term … Whichever approach is correct the answer is the same namely, that the mental impairment began to have a substantial adverse effect on the applicant's normal day-to-day activities from the end of November 1997 through until 13 October 1998 at which point it was likely objectively to last for a total of at least 12 months and we know with the benefit of hindsight that it has lasted two years and is likely to continue for some time yet."

[29]It seems to us on the basis of that passage in the decision that it is clear that the tribunal were applying the correct approach namely: looking at the position as of October 1998; looking at it objectively; taking into account the evidence available as of that date; considering its period of continuation prior to that date; whether it was more or less likely that it would continue beyond that date; and if so whether the total period of disability would be greater than 12 months. It seems to us that there is no error of law in that approach, nor is there any perversity in that conclusion.

[30]The only other argument which Mrs Goldman has put forward is this:- that, somehow or other, because the job itself was both the trigger for his developing the mental impairment and the clue to its likely continuation for the future, the tribunal ought to have concluded that it could come to an end at any moment if he only either lost or gave up his job. On that footing, she urges, the Tribunal could not have reasonably concluded that it was likely to continue for a period of 12 months.

[31]What that submission ignores is the undisputed evidence which was before this tribunal unanimously namely that everyone was operating on the basis that his employment was going to continue for the foreseeable future. Indeed the evidence, to which we have referred, of the medical opinions at around that time, all refer to the question of his returning to work. It seems to us, therefore, that there is not only no erroneous approach as far as this is concerned, but this tribunal would have been acting perversely if it had adopted the approach suggested by Mrs Goldman. That approach would be to conclude that, contrary to what everyone else was saying, this man's mental impairment would come to an end because, somehow or other, his employment would be brought to an end.

[32]Therefore, in our judgment, this is an appeal, which does not succeed on any of the grounds put forward, whether in the Notice of Appeal or in the skeleton argument. We therefore dismiss this interlocutory appeal on its substance. We are not dismissing this appeal on the procedural point, which has been put forward by Ms Lahnstein. Whilst, of course, it is regrettable that the appellants did not comply with the procedure required by the Practice Direction, we take the view that it would be quite wrong to dismiss this appeal on what might appear to be a technicality, whereas in fact this is an appeal which has to be dismissed on the substance of the matter. In the light of that, therefore, this tribunal's decision stands and the matter will proceed in the Employment Tribunal in the light of its preliminary ruling.