MR ROBERT PETER JAMES HINA v THE COMMISSIONERS OF CUSTOMS & EXCISE [2001] UKEAT 61_00_3101

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 61_00_3101Case No Appeal No. EAT/61/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR ROBERT PETER JAMES HINAAPPELLANTTHE COMMISSIONERS OF CUSTOMS & EXCISERESPONDENT
Before
His Honour Judge CollinsDate 31 January 2001
[1]APPEARANCES For the Appellant MS D ROMNEY (of Counsel) Instructed by: Mr P Kelly Messrs Neves Solicitors 4 Tilehouse Street Hitchin Herts SG5 2DW For the Respondents Lord Phillimore (of Counsel) Instructed by: Mr A Ferguson H M Customs & Excise Solicitor's Office New Kings Beam House 22 Upper Ground London SE1 9PJ JUDGE P COLLINS CBE This is an appeal against a decision of an Employment Tribunal sitting at London South, whose extended reasons were promulgated on 23 November 1999. It is to be noted that the hearing before them had occupied two sessions. They first sat on 10, 11 and 20 May 1999. They sat again on 5, 6 and 7 October 1999, and they conducted a hearing, or a meeting between themselves, in chambers, on 8 October 1999.[2]The Tribunal is grateful to Ms Romney who has conducted this case on behalf of the Appellant, with determination and panache. There were a number of applications before the Tribunal, but we are only concerned with one: that is an application which he presented to the Tribunal on 10 February 1999. His allegation was that he had been discriminated against, contrary to the provisions of the Disability Discrimination Act 1995 . Essentially his complaint was as follows:
"It is my contention that by placing my performance under formal review as of 10 th November, 1998, that my employer has acted contrary to the above legislation. By placing my performance under review, my opportunities for transfer and promotion are automatically prejudiced until the review is completed/halted. Furthermore, despite having been fully informed in late November/early December, 1998, of the medication that I am taking in respect of depression, and after 10 th Nov., High blood pressure, my employer has taken no steps to modify this position."
[3]The response of the employers, the Commissioners of Customs & Excise, was that on 10 November 1998 the Appellant's performance was not placed under formal review, but under informal monitoring. They deny that that is capable of amounting to less favourable treatment for the purposes of Section 5 of the 1995 Act. If this appeal is successful, that is one of the matters which will have to be considered by the Tribunal in due course.[4]The only other facts I ought to recite as being relevant for the purposes of this appeal are that from 24 June 1985 the Appellant was an Executive Officer with the Customs & Excise, and at the time of the events with which the Tribunal is concerned, he was a Cargo Officer at Heathrow Airport.[5]The Tribunal was concerned for the purposes of the application with a preliminary issue only, as to whether or not the Appellant was suffering from a disability within the meaning of the Act. Section 1 of the Act provides:
"(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."
And paragraph (1) of Schedule 1: "1. (1) "Mental impairment" includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness."[6]The Tribunal were concerned to establish whether or not the Appellant, at the date of the alleged discrimination, namely 10 November 1998, was suffering from a clinically well recognised illness, namely "depression". I put it like that because that is the case which is put before us today, although it appears from paragraph 47 of the Tribunal's Reasons that it was put to them slightly differently. They say:
"The Applicant asserted that he was suffering from "post-traumatic stress disorder" and that he had received, or was suffering from a "psychiatric injury"
. To our considerable surprise, he appeared to be asserting his disorder on the basis of his own diagnosis and his own researches on the internet and on the basis of pages 256 and 257 of a monthly periodical which he produced in his closing submissions."[7]However, it is clear that the question of depression must have been at the forefront of the Tribunal's consideration. There were three relevant medical reports before the Tribunal. There was a report dated 21 November 1997 from Dr Selvarajah, which is at pages 90 and 91 of a bundle produced for the purposes of this hearing by the Respondents. Dr Selvarajah is a Psychiatric Registrar at the Elthorne NHS Trust. He saw the Appellant on 17 November. Suffice it to say for the purposes of this judgment that he concluded that the Appellant was a:
"34 years old married man who is employed as a Customs Officer at Heathrow presents with difficulties at his workplace which he claims have caused immense stress and anxiety and he wants to be referred to a psychologist. My impression is that there is no evidence of any psychiatric illness in this gentleman. Having discussed his case with Dr Helen Bond, Consultant Psychiatrist, we both felt that as there is no evidence of any psychiatric illness in this gentleman, that no further review is required."
[8]There was also a report from Dr Stephen Frank; Dr Frank is a Consultant Psychiatrist at the Lister Hospital. He saw the Appellant on the reference of the Occupational Health Service of the Customs & Excise. He described the Appellant as an "interesting 34 year old man" and concluded:
"At interview, he presents as an intelligent man who was able to give an articulate account of himself. Throughout the interview, he was slightly anxious and had rather rapid speech. I could detect no clear evidence of a depressive illness or of an underlying Psychotic process. His cognitive functions are intact. There is no clear evidence that this man is suffering from a Psychiatric illness and he does not fulfil any of the definitions for Personality Disorder under ICD 10."
That is the international classification of diseases of the World Health Organisation. "However, I think that his personality profile may incline him to a rather litigious attitude in his dealing with others."[9]We are told by Lord Phillimore on behalf of the Respondents, and it is not disputed, that that report was not disclosed willingly by the Appellant, but had to be obtained from him between the two sets of hearings in May and of October 1999. The most up to date report which was placed before the Tribunal was a report of the Appellant's General Practitioner, Dr Kandela, which appears at pages 94 - 96 of the bundle prepared by the Respondents, dated 5 April 1999. It points out that:
"From September 1996 his notes clearly identify stress at work as an issue related to his depressed condition"
And coming nearer to the time with which the Tribunal were concerned:
"In March 1998 he attended the A&E Department at Ashford Hospital, because of 'stress at work'. However in October 1998, he came with a left sided ear infection for which he was prescribed antibiotics. ……… On Dec 4 th 1998 he came complaining of difficulty in breathing and he also claimed that he was passing blood with his motion. ……"
He was started on antibiotics for high blood pressure and on 18 February 1999:
"he attended and claimed that the air circulation in his work environment was polluted……..and he attributed his health problems to this fact. This patient clearly suffers from moderate to severe stress, which manifests itself in a variety of physical medical problems. He clearly attributes his stress to problems and conditions at work. Some of the symptoms can be alleviated by medication but it is difficult to see how this condition will resolve itself while he maintains his current pattern of work."
[10]In short, there was simply no medical evidence before the Tribunal, either in May 1999 or October 1999, which could have even begun to justify the Tribunal in coming to the conclusion that in November 1998 the Appellant was suffering from a clinically well recognised illness, which amounted to mental impairment. Although it is correct that the Tribunal troubled to make its own personal assessment of the condition of the Appellant as it demonstrated itself throughout the six days of the hearing, it seems to us that it was an inappropriate exercise for the Tribunal to embark upon and that they, unfortunately we think, allowed themselves to be deflected from the essential matter which they should have considered, namely, was there a mental impairment as at November 1998, which was the only date relevant for their purposes of their consideration.[11]On the evidence which they had before them they could only have come to one conclusion, which was that there was no evidence of such impairment. All I have said so far is essentially by way of background, because at the hearing in his closing submissions the Appellant mentioned the possibility of a further psychiatric examination. The Tribunal referred to it in this way in paragraph 56:
"we found it frankly amazing that the Applicant in his closing submissions to us appeared in effect to be suggesting that he is going for further psychiatric examinations."
[12]After that the chronology is not entirely clear, but it does seem that after the Chairman had dictated the reasons for the decision which he and the other members had arrived at privately on 8 October, but before it was typed up, a fax was sent to the Tribunal by the Appellant, containing an incomplete report by a Consultant Psychiatrist, Dr Andrews. It is a report dated 3 November 1999. We have still only seen a copy of that incomplete version, and although Ms Romney has been in a position today to show us the missing page, we declined to look at because it has never been provided to Lord Phillimore or those instructing him, and also because the Appellant was not in a position to show us today the original, which we gathered from hearing his observations to Counsel was at home, which was rather an unsatisfactory place for it to be in the circumstances. And Ms Romney has accepted that it would be appropriate for us to consider what was before the Tribunal, and what was before the Tribunal was an incomplete copy.[13]Now, it appears as though the Tribunal took no account whatsoever of Dr Andrews's report. We have been shown an attendance note of a telephone conversation which took place on 18 November 1999 between the lawyer in charge at the Customs & Excise Solicitor's Office and a lady at the Employment Tribunal. He records her as having said this:
"She said that the Chairman had completed the decision and it was being typed. They had received the psychiatric report of Dr Andrews but it would not be considered by the Chairman because the decision was complete."
That raises a number of questions which are not answered In our judgment the correct approach for us is to see first of all whether on any reasonable reading of Dr Andrews's report it might have made a difference to the conclusions of fact to which the Tribunal came. If we were to conclude that it might have made a difference, then to consider what, if anything, the Tribunal should have done about it.[14]The first point to make about DrAndrews's report is that it is unclear as to when he first saw the Appellant. He refers to seeing him on three occasions in October 1999, although whether the first one was before or after the final date of the hearing before the Tribunal, is unknown to us. It is noteworthy that Dr Andrews was not supplied with the reports of Dr Selvarajah or Dr Frank, although he was supplied with the report of Dr Kandela. Whether Dr Andrews's report would have been more reserved if he had had those other reports is something which we cannot possibly know. We must assume that Dr Andrews made his report on the basis of his own clinical observations in October 1999, and it is quite correct that Dr Andrews who is a Consultant Psychiatrist at the Lynbrook Priory Hospital in Woking, concludes that the Appellant, as at October 1999 was suffering from a mixed anxiety and depressive disorder, within the meaning of ICD 10 and he said that "Although he is receiving medication for his condition, I do feel he needs further professional intervention for recovery."[15]In our judgment it is impossible to draw from Dr Andrews's report, either directly or by necessary implication, any indication that the Appellant was suffering from a similar illness in November 1998, any more, in truth, than it is possible to judge from reading Dr Selvarajah's report and Dr Frank's report of his condition in 1997, whether he was suffering from that condition in 1998. The truth of the matter is that it was the Appellant's case and that he simply failed to adduce before the Tribunal any medical evidence which supported it, and the report of Dr Andrews would not have remedied that defect.[16]It has been suggested to us that there was enough material in Dr Andrews's report to justify re-convening the Tribunal, or at any rate, inviting written submissions from the Respondent, because Dr Andrews might have said, had he been asked, that it was likely that the Appellant was suffering from that condition in November 1998. But in our judgment, that simply will not do. It was for the Appellant to establish his case and put forward medical evidence which supported that case It was not for the Tribunal to interrogate the doctor, just in case there might be a diagnosis as at November 1998 which the doctor was capable of giving retrospectively.[17]So that, in our judgment, if the Tribunal had read and considered Dr Andrews's report, the only course which they could have properly adopted was to say that it would have made no difference whatsoever to their conclusion, and they could not properly take it into account.[18]That being said, it would undoubtedly have been helpful to the Appellant, and to this Tribunal, if the members of the Tribunal had read Dr Andrews's report, since they had it some time before their decision was promulgated, and explained what approach they had taken, in relation to it.[19]Other matters which have been addressed to us in Lord Phillimore's skeleton argument, relate to broader principles in relation to finality in litigation and so on. In view of the opinion we have expressed about what the Tribunal would and should have done had it read the report, we do not find it necessary to make any general observations on those aspects of the matter. Facts of cases are infinitely various - there will be some cases when the Tribunal thinks it right in the interests of justice to consider fresh evidence, particularly if there is a reasonable explanation for not having made it available earlier, and if necessary, to re-convene.[20]There will be other cases where the Tribunal thinks that every possible opportunity has been given to the parties to put their case forward, and that there is no reasonable explanation for the evidence being put forward late, and that even if it were material, no account should be taken of it at a late stage. There are infinite varieties of circumstances, and we do not find it necessary to consider where in the spectrum this particular case lies. In our judgment, Dr Andrews's report would not have taken the Appellant's case any further.[21]The other criticisms of the Tribunal's judgment in this matter relate to their own processes of deliberation in relation to the Appellant's state of mind and any impairment in functioning which his state of mind might have produced. For the reasons which we have already given, we do not think that any of that consideration by the Tribunal was relevant to the question which they had to determine: namely the state of the Appellant's mind in November 1998, and therefore we do not find it necessary to express any opinion about it. For those reasons, this appeal will be dismissed.