MRS HEATHER POTTAGE v STONHAM HOUSING ASSOCIATION LTD [1999] UKEAT 935_99_1910

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 935_99_1910

Case No Appeal No. EAT/935/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS HEATHER POTTAGEAPPELLANT

STONHAM HOUSING ASSOCIATION LTDRESPONDENT

Before

His Honour Judge J Altman Mrs M T Prosser Mr J A Scouller

Date 19 October 1999

[1]APPEARANCES For the Appellant MS F MORRIS (of Counsel) JUDGE ALTMAN : This is an appeal from the decision of an Employment Tribunal sitting at Southampton on 30th April 1999, when on deciding a preliminary point, as the tribunal described it, the tribunal decided that the appellant did not have a disability for the purposes of the Disability Discrimination Act 1995 . It comes before us by way of preliminary hearing to determine whether there is a matter of law, which can properly be argued in full before the Employment Appeal Tribunal. The background facts as found by the Employment Tribunal in what appears to have been, if we may say so, a very careful and detailed analysis of the evidence, is that the appellant worked for 10 years as a project worker for the respondent Housing Association. The appellant ran a residential centre for people suffering from schizophrenia; clearly highly valuable and stressful work.

[2]On 26th February 1998 the appellant collapsed at work and she had symptoms including those that prevented her driving or getting out of bed, giving rise to anxiety about answering the door or the telephone. She had difficulty in making decisions about everyday tasks. She was certified unable to work for a month due to "fatigue syndrome".

[3]The appellant's general practitioner diagnosed anxiety, stress and fatigue symptoms. The Employment Tribunal found that she was unable to drive for two months; handling financial matters caused anxiety; her memory was affected in that she left an oven on overnight and kept on having to check whether she had locked doors; and "for some time" she could not read, watch television, or attend lectures that were part of her interests.

[4]In May 1998, about three months after the incident, she was referred to the Portsmouth Mental Health Team with the symptoms of anxiety and panic attacks, illustrated, amongst other things, by her inability to read the lesson in Church which was her wont, and a reluctance even to meet people because of her fear of demands that may then be made upon her. She was prescribed anti-depressants and she is still taking medication.

[5]At the time of the tribunal hearing in April 1999, fifteen months after the incident, she was by then driving and answering the telephone, but needed for the former to "psych herself up". There was a finding, which provides an interesting basis for analysis in the context of the tasks facing the Employment Tribunal, that she had "learned to control her panic attacks".

[6]The appellant did have a history of a period of about 15 years of recurrent episodes of anxiety and stress with some depressive symptoms. The episodes were short-lived and responded to treatment up until the February 1998 incident. Her employment was terminated in November 1998, nine months after the incident.

[7]A feature of the case before the Employment Tribunal which did not make their task any easier, was the absence of any medical evidence or reference to encyclopaedic definitions of mental disability, together with the evidence of the appellant that she had, quite understandably, no knowledge as to what would happen if she stopped medication. She remains under the supervision of the doctor. At the time of the Employment Tribunal hearing, , she was still signed off from work, as it is put, for a further six months. She had retired on medical grounds and, at the time of the hearing, she no longer read the lesson in Church. She was "managing most other things". The impression given is that there was a change in her attitude to life. It appears, to put it briefly in summary form, that she had lost her zest for life. In October 1998 was her last contact with the Portsmouth Mental Health Team.

[8]The respondents submitted to the tribunal that although mental impairment was relied on, it was unsupported by medical opinion and they submitted that it was not to be defined as a disability. The appellant maintained an impairment over a period of 15 years on and off.

[9]Having found the facts of this case, in paragraph 11, 12 and 13 of their decision, the Employment Tribunal set out very properly and fully the statutory definitions of disability, the meaning of terms such as long-term, adverse, substantial, normal day-to-day activities. The tribunal referred to the Code of Practice and Guidance Notes. In paragraph 14 they found as a fact that in this case there was a long-term mental impairment.

[10]In paragraph 15 the tribunal addressed the question as to whether the disability or the impairment had a substantial or long-term adverse effect on the ability of the appellant to carry out normal day-to-day activities. The rest of the tribunal's decision is an analysis of that against the background of the facts. Paragraphs 16, 17 and 18 set out fully and meticulously the general tests and guidance from all sources to which reference is made. At paragraph 19 the tribunal then highlights particular factors which relate to the sort of decision that follows from a depressive illness, such as is described in this case.

[11]The tribunal then, properly, referred to the Employment Appeal Tribunal decision in Goodwin v The Patent Office

[1999] IRLR 4

. The tribunal then reached its decision in paragraph 22. They said this:

"22. The onus of proof is on the Applicant. The standard of proof is the balance of probabilities. For her to succeed we must find that it is more likely than not that the impairment relied on by the Applicant, namely depression, has a substantial adverse effect on her ability to carry out normal day to day activities. Having carefully considered all the evidence we are not persuaded that this is the case. The Applicant suffers some degree of impairment due to depression. However, based on the evidence before us, it is our unanimous decision that the degree of impairment cannot be described as having a substantial adverse effect on normal day to day activities. The impairment forming the basis of the Applicant's complaint does not constitute a disability within the meaning of the Disability Discrimination Act 1995 and this complaint is dismissed."

[12]It appears that the Employment Tribunal focused on the word "substantial" and measured the degree of impairment and found that although there was "some degree of impairment" it was not sufficiently "substantial" in its effect on normal day to day activities to amount to a disability within the Act.

[13]It does seem to us that at least there is an argument that it is not apparent, on the face of the decision, which of the tribunal's findings of fact led the tribunal to that conclusion. The facts the tribunal found, as one would expect, do not all go one way. On the one hand there is a continuing certification of inability to work which is evidence in relation to day to day activities. On the other hand the tribunal traced carefully the actual day to day activities which they enumerated which had been impaired. It seems to us that on the face of the decision it is at least arguable that it is not possible to deduce what were the reasons from within the findings that the tribunal had already made which led the tribunal to reach the decision they did. On that ground, therefore, we consider that this matter should go forward to appeal.

[14]The case will be listed for one day in Category C. We direct that skeleton argument be furnished 14 days before the hearing. It does not appear that it is necessary to obtain Notes of Evidence.