MRS L BROWN v LONDON BOROUGH OF MERTON [1999] UKEAT 506_99_2307

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 506_99_2307Case No Appeal No. EAT/506/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS L BROWNAPPELLANTLONDON BOROUGH OF MERTONRESPONDENT
Before
His Honour Judge D M LevyDate 23 July 1999
[1]APPEARANCES For the Appellant MR P O'BRIEN (of Counsel) 1 Stonecross St Albans Herts AL1 4AA JUDGE LEVY: On 26 March 1998, Mrs Linda Brown, the Appellant, made an application to an Industrial Tribunal complaining of unfair dismissal and disability discrimination. Her employer, the London Borough of Merton, the Respondent to this appeal, put in its Notice of Appeal dated 20 April 1999. There was a hearing before an Industrial Tribunal sitting at Brighton on 25 November 1998 and both the Appellant and Respondent were represented by Counsel. The decision was sent to the parties on 5 January 1999. The decision of the Tribunal unanimously was that the Appellant did not suffer from disability within the meaning of the Disability Discrimination Act 1995 ("the 1995 Act"). From that decision, the Appellant put in a Notice of Appearance in person, dated 15 February 1999, which showed such insufficient grounds for an appeal that further and better particulars of the grounds were sought from her. She sent the Registrar a letter dated 31 March 1999 in which in short she complained that the appeal was against a perverse decision. Today she has had the advantage of being represented by Counsel (not the Counsel that appeared before her below) who has abandoned that ground of appeal and has asked us for leave to substitute two different grounds of appeal. The way these are phrased in his application are:
"1. The Employment Tribunal erred in that having concluded that the appellant was suffering a long-term impairment, namely, von Willebrand's disease, and also from a progressive or long-term mental impairment, namely, a depressive stress related condition, and having further concluded that several minor adverse effects on day-to-day activities arose from either of the impairments or from both, the Employment Tribunal should have considered with reference to the Guidance whether the cumulative adverse effect was substantial."
Reference to the Guidance is intended to be a reference to the Guidance on Section 3 of the 1995 Act issued by the Secretary of State for Education and Employment on 25 July 1996.[2]In his address to us today, Mr O'Brien particularly drew attention to Part II paragraph (A)(iv) of the Guidance and submitted that this paragraph should have been quoted in the Extended Reasons itself when the Tribunal was dealing with "substantial" adverse effect in a Disability case. We have looked at the Extended Reasons in some detail. It is apparent to us that the Guidance was before the Tribunal. In the Extended Reasons the Tribunal set out the submissions of Counsel both for the Appellant and the Respondent in which there are numerous references to the Guidance. In their findings of fact, there are also references to the Guidance. We are satisfied that although there was no actual reference to the paragraph to which Mr O'Brien drew attention, it was a paragraph which it is apparent from the Decision that the Tribunal had in mind. We are not satisfied that the point made in that proposed ground of appeal raises an arguable point to go to a full hearing. Indeed we consider that the Tribunal had before it the Guidance and properly considered all the material paragraphs.[3]The second ground which Mr O'Brien wishes to put forward is phrased in these terms:
"The Tribunal erred in that having concluded that there was insufficient evidence before it to determine whether or not the appellant's impairments had long-term effects it failed to issue appropriate directions, for example, for provision of further medical evidence, in order properly to satisfy the provisions of Rule 9 of the Employment Tribunal Regulations and better to effect the purposes of the Disability Discrimination Act 1995."
Rule 9 of the Employment Tribunal Regulations of the Industrial Tribunal (Constitution etc) Regulations 1993 schedule 1 is in these terms:
"(1) The Tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."
[4]It is clear from the decision that the Appellant's General Practitioner (Dr Chegwidden) was present throughout the hearing and indeed gave evidence to the Tribunal. In paragraph 4 of the Extended Reasons his evidence is summarised at some length. Mr O'Brien complains of this finding by the Tribunal:
"The Applicant suffers from von Willibrands disease which she accepts she had in a mild form. Her GP Dr Chegwidden was never involved in that treatment."
Although Dr Chegwidden was never involved in the treatment, from the corners of the decision, it is apparent that the reports of what happened to his patient were reported to him.[5]The Extended Reasons continue:
"There was no corroborative evidence to show that the Applicant made over 60 visits to St George's hospital for treatment between 1994 and 1997. There was no evidence of what treatment was provided for the Applicant by the hospital or of the symptoms observed by the hospital. (d) The Applicant accepted that the von Willibrands' disease did not prevent her from working. She has suffered from the condition throughout her life and it has not had any substantial deleterious long-term effect upon her lifestyle."
In the light of the lack of corroborative evidence and because of the lack of knowledge of what treatment she had had at the hospital, Mr O'Brien submitted that paragraph 9 of the Procedure Rules came into play.[6]When an applicant has been represented by Counsel at a hearing and her Doctor has been present throughout, in our judgment it is going beyond the calls of duty of the Tribunal to invoke its powers under Rule 9.

(c) we find no reason to criticise the final sentence:

"The Tribunal is not satisfied that the Applicant has discharged the burden on her to show on the balance of probabilities that the adverse effects suffered were more than "minor or trivial" ."
The very first sentence of that paragraph reads:
"That to be substantial within the terms of the 1995 Act the impairment has to be more than "minor or trivial" ."
[7]In our judgment, the Tribunal addressed itself properly. It would be wrong to allow grounds of appeal to be added which have no hope of success. In our judgment there are no grounds to go forward which have been shown to us which would lead this to a successful conclusion for the Appellant in this appeal. In these circumstances, we thank Mr O'Brien for the help he has given us this morning, but we dismiss the appeal at this stage.