MR J F BRENNAN v BEDFORD BOROUGH COUNCIL [2001] UKEAT 352_01_2111

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 352_01_2111Case No Appeal No. EAT/352/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J F BRENNANAPPELLANTBEDFORD BOROUGH COUNCILRESPONDENT
Before
Mr Recorder UnderhillDate 21 November 2001
[1]APPEARANCES For the Appellant IN PERSON MR RECORDER UNDERHILL QC: This is our decision on the preliminary hearing of an appeal against the decision of an Employment Tribunal sitting at Bedford. The Tribunal dismissed the Appellant's claim under the Disability Discrimination Act 1995 on the ground that he did not at the relevant time suffer from any disability within the meaning of the Act. The issue of the Appellant's disability was tried as a preliminary issue, but it took no fewer than five days and the Extended Reasons, sent to the parties on 16 January 2001, run to 15 pages and are very full. The Appellant's Grounds of Appeal, contained in a document headed "Further and Better Particulars from the Appellant", run to 23 pages and his Skeleton Argument in support runs to 21 pages. We were supplied at the start of the hearing with a bundle containing 100 documents. In these circumstances we have felt obliged to take the unusual course for a preliminary hearing of reserving our decision so that we could be sure that we had fully digested the materials available to us in the light of the Appellant's oral submissions.[2]We have reached the conclusion that the Appellant has not in his Grounds of Appeal raised any point of law that requires to be argued at a full hearing and that his Appeal accordingly falls to be dismissed. It is accordingly necessary for us to give full reasons for that conclusion.[3]The essential background to the issues that fall to be considered is as follows:(1) The Appellant was first employed by the Respondent in 1991, as its Public Relations and Marketing Manager. He was then aged 34 or 35. He was very able and hardworking: indeed it appears to be common ground that he was something of a workaholic.(2) On 10 September 1998 he was suspended by the Respondent on suspicion of misconduct in relation to his expenses claims.(3) The suspension had an impact on the Appellant's health. On 21 September 1998 he was diagnosed by his GP as suffering from depression. He saw a psychiatric SHO at his local hospital on 8 October 1998. He was prescribed antidepressant medication.(4) The investigation of the Appellant's alleged misconduct hung fire while he remained ill. But he was certified fit to return to work on 2 August 1999 (though there may be a question mark whether he was really fully recovered). He underwent a "second preliminary interview" in connection with the allegations against him on 4 August 1999; and a subsequent disciplinary hearing. He was dismissed for gross misconduct on 26 October 1999. An appeal against the dismissal was unsuccessful.(5) On 14 January 2000 the Appellant presented tribunal proceedings claiming "wrongful dismissal, unfair dismissal, disability discrimination, victimisation for acting in the public interest". The particulars of his complaint run to 19 pages. Only a small part is concerned with the claim for disability discrimination. The essence of the allegation however appears to be that the depressive illness from which he had been suffering since his suspension continued during the period from August 1999 until his dismissal, and in particular between late September and mid October 1999; that this was known to the Investigating Committee; and that the Committee failed to take the state of his health into account or make any reasonable adjustments for it. It is not clear precisely what act of discrimination is being alleged: it is not, for example, alleged (at least explicitly) that the Appellant was dismissed for a reason which related to his disability. But the relevant period is evidently the weeks and, perhaps, months immediately prior to the dismissal.(6) On 27 March 2000 the Tribunal ordered that there be a preliminary hearing "to consider whether or not the Applicant was disabled within the terms of the Disability Discrimination Act 1995 at the relevant time".[4]That issue came before the Tribunal on 5 June 2000. It seems originally to have been envisaged that it could be disposed of on that day; but in the event, as we have noted, it took a further four days, one on 5 September 2000 and three further days between 4 and 6 December 2000. As we understand it, the hearing of the other issues raised by the Appellant's application was deferred and has not even now taken place.[5]The Tribunal helpfully sets out the nature of the dispute between the parties in paragraphs 2 to 4 of its Extended Reasons, as follows:
"3. Mr Brennan says he is disabled within the terms of the Act through his having a "mental impairment" which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. This, he says, brings him within the terms of section 1(1) of the Act. 4. He claims he suffers from a recurrent depressive illness or, if not a recurrent one, then certainly a depressive illness which is clinically well recognised and one which has persisted for upwards of twelve months or which was foreseeably likely to persist for that period of time or longer. The adverse effect upon him and his ability to carry out normal day-to-day activities has, he says, been substantial and long-term. The Respondent for its part is, at best, willing to accept that Mr Brennan might, for a period, have suffered from a mild depressive illness but refutes the contention that it has had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."
[6]After a full review of the relevant law (including the Code of Practice issued under the 1995 Act) and the evidence, the Tribunal concluded(a) that the Appellant had from 10 September 1998 until the date of the hearing suffered from a mild depressive illness and "some degree of mental impairment" (see para. 29 of the Reasons) but(b) that that impairment had not had "a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities". Consequently it held that he did not at the material time suffer from a disability within the meaning of the Act. Its conclusion is set out and explained in paragraphs 43 to 44 of the Reasons in the following terms:
"43. We do not believe that Mr Brennan suffered from any form of depression during his period of employment with the Council up to the time of his suspension. He may well have been working too hard and that usually gives rise, in most people, to problems relating to their physical and mental wellbeing. The realisation that he, an ambitious and highly motivated and competent local government officer, was being suspended from a job he had thoroughly immersed himself in, with all the ramifications which might well flow from that, caused him an enormous amount of stress. He was a person who had succumbed to stress in the past when his marriage foundered. He had wholly recovered from that and had, for seven, or possibly eleven, years been able to thrive and hold down very demanding jobs. Following his suspension he did become depressed. Nothing suggests to us that the depression was or is anything other than mild though we do accept that at times of particular stress Mr Brennan, for short periods, felt unable to cope. Mr Brennan, understandably, was in quite a state to begin with following his suspension. He was, nonetheless, able to engage in activities with the Institute of Public Relations in the immediate aftermath of his suspension and later, after medical help and help from friends and relatives, was able to mount a detailed defence to the allegations being levelled against him. As far as we have been made aware, he did so himself, researching to an enormous degree what he needed to know and do in relation to retaining his post with the Respondent. This, in itself, would have been severely challenging and stressful and would have taxed most people, whether depressed or not. There have, no doubt, been times when the cumulative effect of all this has made Mr Brennan feel unable to cope or mange certain activities and we take account of the fact that whilst he may not bring himself sufficiently within any particular single category under C4 of the Code of Practice, the cumulative effects of one or more of them upon him might have induced us to classify him as disabled within the meaning of the Act. 44. Our conclusion, however, is that he does not come within the terms of Section 1 of the Act. Mr Brennan in our view is someone who has reacted to situations of stress, largely brought about by his nature and his almost obsessive attitude to his work - an attitude which, it is clear to us, existed long before he became depressed following his suspension in September 1998. Whilst he has graphically recounted his experiences as a passenger in a car, he had, nonetheless, been able to travel by air and enjoy holidays which have relieved him of stress and resulted in his being, at least for periods, able to lead a normal lifestyle and carry out normal day-to-day activities. We have considered the issue of his medication. Whilst noting that his own GP, Dr Howard, has declared that in his view, Mr Brennan is disabled within the meaning of the Act, we are much more persuaded by the evidence of Professor Seager who totally impressed us by his obvious desire to avoid saying anything which might, even to the slightest degree, be seen as being unfair to Mr Brennan. Professor Seager was as convinced as he could be that Mr Brennan suffered only mild depression and would have improved greatly and would continue to do so were he not to be engaged in his current stressful activities. The long-term effect of Mr Brennan' s illness on his normal day-to-day activities has not been and is not sufficient to bring him within the Act's provisions. We do not believe the effects of his illness have been more than intermittent and the illness only recurs when Mr Brennan puts himself under stress. There may have been times, and we can accept that such was the case, when he had difficulty in carrying out certain activities, but the overall view we take, on the evidence we have heard, is that by and large Mr Brennan was able to get on with his life. The big gap in his life was the lack of a busy and demanding job. This has been his biggest problem and to compensate he has immersed himself in activities on his computer and otherwise in researching and preparing his claim to this Tribunal and, possibly, elsewhere. For the most part he has been and remains able to carry out normal daily activities despite his problems. He has never to the Tribunal's knowledge seen an NHS or private consultant at any stage. With his having been seen regularly by his GP and referred to the psychiatric unit of the local hospital this would suggest that his problems are not as serious as have been suggested by the Applicant and his witnesses. Mr Brennan has failed to persuade us that he suffers a disability within the terms of Section 1 of the Act."
[7]The Appellant's Grounds of Appeal fall under five heads which we will consider in turn. 1. "Fair Hearing"[8]The Appellant was unrepresented in the Employment Tribunal, as he also was before us. It fell to him to open his case. He is highly intelligent and had plainly done an enormous amount of work in preparation for the hearing. He had a clear idea of how he wished to proceed. His essential complaint under this head is that the Tribunal did not allow him to present his case in the way which he had planned but threw him off course by adopting an inquisitorial approach under which the Chairman effectively took him through his evidence by a series of questions. The Chairman's approach, he contends, was frequently based on a misunderstanding of his case and led to the real issues being obscured. He refers to the well known case of Jones v. National Coal Board [1957] 2 QB 55 , in which the Court of Appeal overturned a decision of the High Court on the grounds that the Judge had intervened excessively in the presentation of the evidence. He also referred to Dombo Beheer BV v. Netherlands [1993] 18 EHRR 213, in which the European Court of Human Rights held that a party is entitled under art. 6 of the Convention to "a reasonable opportunity to present his case".[9]We have not had the benefit of any comments from the Chairman on this head of the Appeal. If the case were to proceed to a full hearing, such comments would no doubt be obtained. However, we are doubtful to what extent they would really assist in the resolution of this issue and we do not believe that it is impossible to address this ground of appeal without access to them. We must at this stage assume, in the Appellant's favour, that the Chairman did indeed adopt the approach complained of. It is impossible - and would be impossible even if the Chairman's comments were obtained - to measure the extent to which the presentation of the Appellant's case was governed by the Chairman's interventions: there is of course in the Employment Tribunal no transcript such as was available to the Court of Appeal in Jones. But we must assume that the extent of the intervention was very substantial. However, we can also proceed on the basis that the Chairman's motivation was a desire to keep the evidence and arguments focused on the real issues and that it did not involve denying the Appellant the chance to make the points which were essential to his case. That might be inferred from the very length of the hearing; but the Appellant himself confirmed to us that the Chairman allowed him an opportunity to make his essential points both in his cross-examination of Professor Seager (to whose evidence we refer below) and in his closing submissions. His complaint was not of partiality or the exclusion of relevant evidence or argument but simply that his preferred method of presentation had been disrupted - with, he submits, serious effects on the Tribunal's understanding of the case.[10]On this basis, we do not believe that the Chairman's method of handling the case can be said to have involved any procedural unfairness or injustice or indeed any error of law. Tribunal Chairmen are rightly accorded a wide measure of discretion in how they regulate the conduct of proceedings before them. Some such discretion is necessary to any court; but it is particularly necessary in a tribunal which has to deal frequently, as in this case, with unrepresented parties. Often a high degree of direction from the Chair is necessary in order to ensure that the real issues are addressed; and that may be the case when dealing with educated and articulate litigants in person just as much as when dealing with the ill-educated and inarticulate. In the present case there is good reason to believe that such an approach was necessary. In paragraph 2 of the Reasons the Tribunal says this:
"This is a preliminary hearing to determine whether or not Mr Brennan is disabled within the meaning of the Act. That is the sole purpose of this hearing, which unusually, has lasted five days. There is little to be achieved by dwelling on the reasons why it has taken so long, suffice to say that the parties would do well to focus more clearly on the substantive issues yet to be adjudicated upon otherwise there is a danger that the case will take up a disproportionate amount of the Tribunal's time and cost the parties more than is reasonable in terms of time and money."
The language is guarded, and it may well be that some criticism was intended of both parties. But there can be no doubt that the complaint of "lack of focus" was addressed at least partly to the Appellant. We have of course heard submissions from him ourselves, and have read his various written materials: these are extremely discursive and often range further than the point ostensibly being addressed. Although the Appellant is courteous and articulate, we can well understand that the Chairman is likely to have felt that to allow him to take his own course in the presenting of his case would not - whatever he may now believe - have conduced to the clear presentation of the essential issues.[11]It is of course the case that where a tribunal adopts an interventionist approach an advocate or a litigant in person will be prevented from advancing his or her case precisely as they would have wished; and it is not at all uncommon even for professional advocates to feel that it would have been better if the court had let them take their own course. But such tensions are an inevitable part of the process, and they do not evidence any injustice any breach of convention rights under Article 6.[12]The position would be different if there were allegations of actual or apparent partiality or that the Appellant was precluded in some absolute sense from taking a particular point or calling particular evidence. But that is not the case. If, as the Appellant feels, the way in which he was impeded in presenting his case as he would have wished has led the Tribunal into error, his remedy is to appeal against the erroneous conclusion as a matter of substance. 2. "Reliability of Expert Evidence"[13]The Tribunal heard evidence from Professor Seager, Emeritus Professor of Psychiatry at the University of Sheffield. The Appellant had not consented to a psychiatric assessment or examination, but Professor Seager had prior to the hearing produced a short report based on the limited written material available to him (document 82 in the bundle supplied to us); and he sat in on the hearing and supplied a further report on the basis of his observations of the Appellant over the first two days (document 89). He was the last witness to be called and was subjected to a full cross-examination by the Appellant.[14]The Appellant contends that Professor Seager made a large number of serious errors in his evidence. In his Grounds of Appeal under this head he summarises a number of detailed points as follows:
"I submit that Professor Seager was wholly wrong in saying that my illness was not major depression and wholly wrong in suggesting that it was mild and not recurrent."
He contended that the Tribunal accepted Professor Seager's evidence uncritically, with the result that it accepted his erroneous conclusions and misunderstood several key points in the evidence. He says:
"I believe the Employment Tribunal focused on the status of the Respondent's expert witness rather than the efficacy of the evidence he presented; and I submit that the Tribunal should have taken a more independent view, rather than rely on the authority of a witness. The Tribunal's reliance on his opinion that I only suffered from mild depression is evident throughout the Extended Reasons. Perhaps the Tribunal was more mindful than was the witness himself of his primary duty being to the Court."
[15]These submissions do not raise any question of law. The question of what weight to give to the evidence of any particular witness, and of what factual conclusions to draw from the evidence as a whole, is a matter for the Employment Tribunal. There is no right of appeal from those conclusions to this Tribunal, however erroneous a party may believe them to be. This is not, of its nature, a submission that there was no evidence to support the Tribunal's findings: rather, the Appellant contends that the Tribunal put too much weight on the evidence that there was. We should in any event add that we do not see any sign that the Tribunal, in its thorough examination of the evidence, accepted what Professor Seager said as gospel. It was careful to acknowledge the limitations which it appears he himself had emphasised, derived from the fact that he had not had an opportunity himself to examine the Appellant or, it seems, access to his notes. (In this connection, we should mention one misunderstanding which appeared during the Appellant's oral submissions. He submitted that the phrase, in paragraph 44 of the Reasons, "Professor Seager was as convinced as he could be" indicated a high degree of conviction and misrepresented Professor Seager's views. On the contrary, we are sure that this phrase was intended to refer to the very limitations referred to above - i.e. it means "as convinced as was possible in the (unsatisfactory) circumstances".) 3. "Deduced Effect"[16]The reference to "deduced effects" is to the judgment of this Tribunal in Goodwin v. The Patent Office [1999] ICR 302 . In his judgment in that case Morison P refers to paragraph 6(1) of Schedule 1 to the 1995 Act, which is in the following terms:
"an impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day to day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect; " and to paragraph 6(2) which provides that "measures" includes "medical treatments"
. He points out (at p. 310D-E) that where an applicant was in fact receiving treatment, or taking other measures to correct his or her disability, a tribunal would have to infer, or "deduce", what the effect of the condition would be apart from that treatment or those measures.[17]This point, however, appears to be something of a red herring. As the Appellant acknowledges, the Tribunal explicitly directed itself in accordance with Morison P's guidance in Goodwin (see paragraph 31 of the Reasons); and he does not identify, nor can we ourselves see, any indication that the Tribunal lost sight of this guidance in the course of its reasoning. For example, in paragraph 33 it expressly refers to the Appellant's submission that "without the medication … matters would be worse, probably much worse"; but it counters that submission by reference to the evidence of Professor Seager. The truth is that the Appellant's submissions under this head are directed not to any specific point on "deduced effects" but to attempting to establish that the Tribunal came to the wrong conclusion - and indeed to a conclusion to which no reasonable tribunal could have come. He makes a number of particular points. It is not necessary for us to itemise them all, but they include: that the Tribunal was misled by its over-reliance on the evidence of Professor Seager; that it failed to draw the right inferences about the severity of his condition from the medication which he was prescribed; and that it failed to give sufficient weight to the entire history of his treatment. These are all matters of fact; and the same is true of almost all the points made in the five pages of argument under this heading (and in the supporting section of the skeleton argument). As the Appellant recognises, they can only be characterised as a point of law if the Tribunal came to a conclusion which can properly be described as perverse.[18]We do not believe that the Appellant has demonstrated any case of perversity here. It is important to appreciate that the Tribunal accepted that the Appellant suffered at the material time from depressive illness which had lasted for over a year. The reason why it nevertheless held that he was not disabled was that it judged that the depression was mild and that accordingly it did not have a substantial adverse effect on his ability to carry out normal day-to-day activities. The assessment of whether the adverse effect of a given condition is long-term or substantial inevitably involves questions of judgment and degree. The judgment must of course be based on a careful review of the evidence - it should not be superficial or broad-brush. But where, as here, the tribunal has patently carried out a careful review of all the evidence by reference to the statutory criteria and tried to make a sensitive overall assessment, this Tribunal should be very slow to find that it has erred in law. Here, the Tribunal gave specific and intelligible reasons for its conclusions that "the long-term effect of Mr Brennan's illness on his normal day-to-day activities has not been and is not sufficient to bring him within the Act's provisions" and that "for the most part he has been and remains able to carry out normal daily activities despite his problems". In our view those conclusions were open to it on the findings of fact which it made and to which it refers.[19]The Appellant does under this head make two particular points which, if they were well-founded, would potentially raise issues of law.[20]First, he submits that the Tribunal was wrong to consider evidence about his medication at the date of the hearing rather than during the last months of his employment. We see no sign that the Tribunal fell into error here. At the beginning of the passage quoted in paragraph 6 above, which contains the Tribunal's reasons for its conclusion, it correctly identified the period with which it was concerned. It is true that there is at least one reference earlier in the Reasons to the Appellant's then current medication (see paragraph 18); but the context explains why the reference was made and there is no indication that the Tribunal misdirected itself. (In any event, it may well be necessary, in order to establish an applicant's condition at a relevant date, to have regard to evidence of his condition since that date: see Greenwood v. British Airways plc [1999] ICR 969 , on which indeed the Appellant relies in his skeleton argument.)[21]Secondly, he says that the Tribunal failed to have regard to the effects of his depressive illness taken cumulatively, but instead considered them only on an item by item basis. We do not so read the Reasons. Although the Tribunal did indeed go in turn through the various heads of impairment identified in paragraph 4(1) of Schedule 1 of the Act, it made it plain at several points (see for example the second unnumbered paragraph within paragraph 43 of the Reasons) that it was regarding his condition cumulatively. 4. "The Guidance"[22]The broad point under this heading is that the Tribunal, while purporting to take into account the guidance given by the Code of Practice issued under the Act, in fact failed to do so. But, again, the fundamental submissions contained under this heading are, rather, submissions that the Tribunal went wrong on the facts. They do not in our view identify any issue of law. 5. "Victimisation and Section 4"[23]The point raised by this head is as follows. The Appellant told us that he has not only a claim under s. 4 of the Act but also a claim under the anti- victimisation provisions of s. 55. No such claim seems to us to appear in his IT 1, where the victimisation alleged is "for acting in the public interest". But we did not explore this aspect of the point with the Appellant at the hearing, and we will accept for the sake of argument that a claim under s. 55 has been validly raised. The Appellant points out that the formal decision of the Tribunal is recorded in the following terms:
"The unanimous decision of the Tribunal is that the Applicant does not suffer from a disability within the terms of Section 1 of the Disability Discrimination Act 1995. His claim under that Act fails and is dismissed."
He says that that would have the effect of dismissing not only his claim for disability discrimination under Section 4 but also his claim for victimisation under Section 55, since both are claims "under [the] Act". As he rightly points out, a finding that he was not in fact disabled would not be fatal to a claim under Section 55.[24]In our view, if (which we do not need to decide) the Appellant has indeed raised a claim under section 55, then the Tribunal's order was not intended to, and does not, dismiss that claim. Understood in the context of the issue directed to be heard, the Tribunal was plainly only dismissing the claim under Section 4. No order of this Tribunal seems to us to be necessary. Conclusion[25]For these reasons, we do not believe that the Appellant's appeal raises a point of law, and it must be dismissed.