MS D WOODRUP v LONDON BOROUGH OF SOUTHWARK [2002] UKEAT 702_00_0402

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 702_00_0402Case No Appeal No. EAT/702/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS D WOODRUPAPPELLANTLONDON BOROUGH OF SOUTHWARKRESPONDENT
Before
Mr Justice Burton Mr R SandersonDate 4 February 2002
[1]APPEARANCES For the Appellant MR TOM KIBLING (of Counsel) Instructed By: The Disability Law Service 39-45 Cavell Street London E1 2BP For the Respondents MR STEPHEN FLETCHER (of Counsel) Instructed By: London Borough of Southwark Legal (Contract) Services South House 30-32 Peckham Road London SE5 8UB MR JUSTICE BURTON : On 27 March 2000, before the Employment Tribunal at London South, the Applicant Ms Woodrup's claim against the London Borough of Southwark under the Disability Discrimination Act 1995 ("the Act") was held to have failed and was dismissed. At the same hearing a claim by her for breach of contract was similarly dismissed.[2]The course that the claim took before the Tribunal was that it was accepted by the Respondents that the Applicant had a condition, there being medical evidence as to an anxiety neurosis in 1999 dating back for five years, at least in November 1999, and there was also evidence in relation to 1992/93 that she had been suffering from a disabling anxiety disorder from about February 1991. That medical evidence was sufficient, at least for the purposes of the preliminary matter to which I shall refer, to cause the Respondents to accept that position.[3]The Respondents however submitted that there was no disabling condition within the Act, because plainly there were three issues on the disability claim for the Tribunal to consider. The first was the disabling condition, the second, whether it was a disabling condition within the Act and the third, whether she was disadvantaged or prejudiced as a result.[4]The Tribunal was not willing to proceed with a strike out application suggested by the Respondents' counsel, Mr Fletcher, who appeared then on its behalf, as he has appeared before us today, in respect of, inter alia, alleged failure by the Applicant to comply with orders. But it did agree to hear a preliminary point as to whether the condition fell within the Act. Thus, questions as to whether any disadvantage or prejudice was suffered by the Applicant would not arise and, in the event, did not arise consequent upon the resolution of that issue.[5]The course the hearing took on the informal basis, rightly encouraged at the Employment Tribunals, was that the Applicant being unrepresented was permitted, indeed, encouraged effectively to supplement the pleadings and particulars previously given, by explaining what the nature of her case was going to be, effectively thus constituting a proof or witness statement of evidence that she would give, which would thus be put before the Tribunal, and the Tribunal would thus decide, on the basis of the pleadings and the explanation of the case so given by the Applicant, whether there was an arguable case to go forward for full consideration put forward by the Applicant.[6]This is clearly not a usual course, although well within the discretion of the Tribunal, and it involved the need for an experienced Tribunal, as this Tribunal plainly was, to take steps to ensure that it fully comprehended the nature of the Applicant's case. Once that was done then a decision, such as was in the event made, if rightly made, would save what was in fact planned for the balance of a three-day hearing with substantial evidence both ways, on the issue whether there had been any disadvantage or prejudice caused to the Applicant resulting from such disability, if within the Act if so found.[7]Of course, there are always dangers with short cuts and Mr Kibling, who now appears as counsel for the Applicant before us, submits that what might have been properly regarded as a short cut had the effect, as short cuts often do, of reaching the wrong decision, even if the right decision or the same decision might have been reached by a longer route.[8]The medical facts I have already referred to and they were in very short compass. There was a letter dated 30 November 1992 from a Dr Meadows, a Locum Consultant Psychiatrist at the Maudsley Hospital, indicating that the Appellant had been a patient of the Psychiatric Clinic at the Maudsley since September 1991 under treatment for a generalised anxiety disorder, giving a history to them that dated back to February 1991. There was a sick note indicating that the Appellant should refrain from work for three months, by virtue of nervous disorder, dated 22 November 1993 and there was a medical certificate from a GP indicating that in the GP's opinion the Appellant was suffering from anxiety neurosis and was receiving psychotherapy and had had anxiety neurosis for five years, dated 22 November 1999. The most relevant document, perhaps, was that dated 2 December 1999 from the South London and Maudsley NHS Trust, signed by a Consultant Psychotherapist, Dr Davison, and it read as follows:
"This is to confirm that [the Appellant] has been under the care of the Psychotherapy Unit at this hospital since the beginning of 1992. I first saw her on 25.02.92 and have reviewed her progress on a number of occasions since. In that time she has received both individual and group psychotherapy. She has been attending a twice weekly psychotherapy group which meets on Mondays 9.45 – 11.15 am and Wednesdays 8.30 – 10.00 am since 17 November 1997. This has provided her with a rare opportunity for long-term, intensive psychotherapy in the NHS. She has made good progress in psychotherapy and it is very gratifying that she now feels well enough to move on into employment. However she is not yet recovered enough to leave the psychotherapy group and indeed were she to leave prematurely it could jeopardise the recovery she has so far achieved."
[9]That was the extent of the medical evidence. Mr Fletcher complained about the absence of medical evidence and alleged that the absence of any further evidence was allegedly in breach of orders of the Courts and/or obligations of the Appellant to disclose. But the nub of the Appellant's claim was set out in a document headed "Further Particulars of the Originating Application" signed by the Appellant herself and dated 16 February 2000, in answer to a question "State how this illness or condition affects your ability to carry out normal day-to-day activities" and her answer was "Receiving psychotherapy which alleviates the effects. If medical treatment were to be stopped, then I would deteriorate and full symptoms would return". A further question "State whether you have obtained medical evidence to substantiate your illness and/or condition", answer "Yes". It is quite apparent in fact that that answer "Yes" related to the four pieces of medical evidence which were admittedly before the Tribunal, which did, indeed, substantiate the existence of an illness and/or condition, but it is apparent and indeed is accepted by Mr Kibling in terms, that none of the evidence that was obtained by way of medical evidence went to the issue as to whether, if medical treatment were to be stopped, then she would deteriorate and full symptoms would return, which is the answer to the earlier question.[10]The Act provides in section 1, as follows:
"(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."
There is guidance, to which it is apparent that the Tribunal paid attention, which defines what is meant by substantial effect, and, in particular, "substantial" means more than "minimal or trivial". So there is some weight to be placed upon the need for the adverse effect to be both substantial and long-term.[11]Schedule 1 provides, by paragraph 4, a limit on the number of impairments or the number and nature of impairments which are relevant for the purposes of the Act, and paragraph 4(1)(g) is the one highlighted by Mr Kibling, namely one which affects memory or ability to concentrate, learn or understand. Memory is not an issue here, it is concentration which is said to be the relevant impairment.[12]Mr Kibling specifically draws attention to paragraph 6 of Schedule 1 of the Act, which reads as follows:
"(1) 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 in subparagraph (2):
"Measures includes, in particular, medical treatment."
[13]This provision, namely that someone is to be treated as disabled if they are in fact not disabled, that is, that there is no substantial or adverse effect on their ability to carry out normal day-to-day activities, but would be so disabled but for the fact that measures are being taken to treat it, is illustrated in a decision, of which we have been supplied with a copy by Mr Kibling, called Kapadia v London Borough of Lambeth [2000] IRLR 14. He has supplied us with a copy of the decision of this Tribunal, presided over by His Honour Judge Peter Clark. He tells us that the matter went to the Court of Appeal, but that nothing material needs to be relied upon for the purposes of our consideration in the decision of the Court of Appeal.[14]There is nothing that binds us in Kapadia , but it is helpful to be shown a case in which there are similar facts, and that too was a case in which the condition in question was one relating, in that case, to reactive depression and anxiety, and in that case too there was reference before the Appeal Tribunal to the effect of paragraph 6 of Schedule 1. It was in that case that the provisions of paragraph 6 of Schedule 1 were referred to, as imposing "deduced" effects of the impairment on the Appellant's day-to-day activities in the absence of medical treatment, being shorthand for the effects that would have occurred but for the treatment. In that case two doctors were called to support the Appellant's case, giving evidence as to what would have occurred if the treatment had stopped. Paragraph 20 of

Judge Peter Clark's judgment reads as follows:

"It is common ground that in evidence the medical men called on behalf of the appellant were of the opinion that without the counselling sessions … there would have been a very strong likelihood of total mental breakdown and the need for psychiatric treatment including in-patient treatment. … [Counsel for the respondent] does not seriously argue that, if that state of affairs existed, then the appellant's impairment would not have had a substantial effect on his day-to-day activities. … no medical evidence was called by the respondent to contest those expressions of opinion."
[15]In those circumstances it was submitted, successfully, that the majority decision of the Employment Tribunal was perverse in rejecting that medical evidence. In this case, as will be seen, there was no medical evidence at all called to such or similar effect.[16]What occurred was that, notwithstanding the particulars given by the Appellant to which I have referred, and notwithstanding that this hearing was to be the full and final hearing of her complaint, and three days were set aside, the Appellant came to Court unrepresented but, more significantly, without any medical evidence.[17]Mr Fletcher, for the Respondents, does not submit, not surprisingly, that it is not possible for an unrepresented Applicant to succeed in a disability claim without medical evidence. It is plainly much less persuasive if she does not call any medical evidence, and it is perfectly likely that she will either not be believed or be found to have embellished or exaggerated the case, particularly if he or she is cross examined and/or even more so if the Respondent in such a case produces medical evidence to the contrary. But there must at least be an arguable case, if an Appellant makes assertions about his or her state of health, which, if accepted and believed even without medical support, would show at least an arguable case for the existence of a condition and for its long-term or substantial effect on day-to-day activities.[18]What Mr Fletcher here submits however is that there was in fact no medical evidence, but also no actual evidence given by the Appellant. What he submits occurred was that the Appellant simply made assertions as to what would happen if her treatment stopped, but that was not evidence of fact, it was evidence of her own opinion which is no better and no worse than anyone else's opinion, but certainly not expert opinion, and does not amount to any evidence of fact, and is unsupported by any medical opinion to the same effect. He submitted that it would be different if she gave evidence as to what had happened to her, from which inferences could be drawn, but he submitted that no such evidence was here given, even by way of indication as to what evidence was going to be given, in the informal procedure to which I have already referred.[19]We turn then to what occurred before the Tribunal. Complaint, as I have indicated, was made by Mr Fletcher about the absence of medical evidence and, after his unsuccessful attempt to seek to strike out the claim, the preliminary issue was to be resolved such as I have described.[20]The Applicant was, as I have explained, encouraged to supplement her case, so that it could be fully understood, to see whether there was anything in it which began to get to a situation in which there could be said to be a case needing to be answered. Notes have been produced by the Chairman, at the request of the Court, which are in relatively short form, and have been supplemented by the agreed provision of very legible and clear handwritten notes from Mr Fletcher's solicitor, who was present with him at the hearing, and they record Mr Fletcher's submission that on what was pleaded so far then could not be a finding of disablement within the Act.[21]Against that background, the Appellant effectively did not go into the witness box but explained her case and was cross questioned by the Employment Tribunal. The passage which is relatively short, for convenience, I repeat from Mr Fletcher's solicitor's notes as follows:
" Appellant : Effect is the therapy - asked for day-to-day effect nothing more. How day-to-day affected? If therapy not there I would collapse. Tribunal : Not what we are asking. How it affects you in daily living. Until we hear the evidence that you rely on in your claim that you are disabled then can't hear further evidence."
That was plainly a reference to explaining to the Appellant that what was being resolved was a preliminary point. Continuing with the notes: Appellant : Thought had provided this. My medical certificate. Tribunal : Show me where. Appellant : Page 18 [and that is a reference to her further and better particulars] Tribunal : That doesn't show that it has an effect on your daily living. Appellant : It doesn't except for … therapy like medication, if take it away then I sort of … it would be different. Tribunal : You just said 'doesn't affect you'. Appellant : Not on normal day-to-day. Tribunal : Does not affect you? Appellant : Not on normal day without extra stress. Tribunal : Stomach upset - if didn't take your medicine. Appellant : Has given me a reality path. Focus if not then I would slip out of reality. Puts me in a position where I can manage things. Tribunal : Are we talking about concentration. Appellant : Yes, focus. I would drop. Tribunal : What would happen if you dropped. Appellant : Would lose focus and reality. Tribunal : If did not have treatment then what would happen when you got out of bed. Appellant : Couldn't get out of bed. Tribunal : Had you had nervous breakdown? Appellant : Not aware of terms, clinical term. I did collapse. Had severe depression was in bed for month needed to get help." I interpolate that, by reference to the Chairman's notes, it is accepted by both counsel that this relates to an event prior to 1991, when the Appellant first obtained her advice from the Maudsley Hospital, according to the document that I have already read. " Tribunal : Going to go through this with you (Code of Practice). Need to prove this to bring a claim. So what we are looking for is a substantial long term adverse effect to carry out. Appellant : Are you asking me to respond as if I am not having therapy? Tribunal : What we are looking at is the state you … How would … Appellant : Wouldn't be able to get out of bed" I interpolate that it looks as though the Tribunal was here asking a "paragraph 6" question, ie as to "deduced effect". " Tribunal : Physical co-ordination. Appellant : Yes, in a sense, it's the thinking in it, ok, insofar as getting out of bed. Tribunal : Memory, ability to concentrate. Appellant : Yes. Tribunal : Now we need to see medical evidence which backs up what you say. Appellant : Don't think I do, what I have provided [and then she referred to the four documents from which I have already quoted]. Could get something from them (Maudsley Hospital – Has been … Tribunal : Any medication. Appellant : No, doesn't respond to medication, only therapy. Tribunal : Evidence we have shows that you have a medical condition but does not show how this affects your day-to-day activities. Appellant : Gives a hint at [and she here referred to the letter from the South London and Maudsley NHS Trust, dated 2 December 1999]. Tribunal : What is your reaction. Mr Fletcher then rose to say : Concerned that hearing this for the first time. Especially when initially refused then what was ordered didn't provide it. Tribunal : Why haven't you provided it. Appellant : Wasn't asked for when I was working, this is how I angled my case. Tribunal : But you have now been asked many times. Appellant : Thought that I had. Tribunal : Have evidence that have medical condition. Appellant : Can you accept that I would think I had answered it. Tribunal : Don't accept that you answered the question at all." He then turned to deal with the questions on breach of contract.[22]The decision is founded on a dismissal, as I have indicated earlier, in respect of both the disability claim and the breach of contract claim, and I cite only the relevant paragraphs of the decision in relation to the disability claim, after the Chairman has set out the context in paragraphs 9-12. "9 An order was made at an interlocutory hearing for the Applicant to substantiate her claim and her disability but she failed to do so and had not done so by the time the hearing took place. 10 The Applicant claims to have a mental condition for which she has been receiving therapy for a number of years. While not disputing this assertion, the Tribunal is unable to allow the Applicant's claim to proceed further because the Applicant failed to produce any evidence to the Tribunal to demonstrate that her disability had a substantial effect on her day to day activities. No medical evidence was offered to the Tribunal to support the Applicant's claim. 11 The Tribunal considered whether the hearing should be adjourned to permit the Applicant a further opportunity to obtain medical evidence, but concluded that this would serve no purpose as the Applicant had been repeatedly requested by the Respondent, and later, ordered by the Tribunal to produce such evidence and had not done so. 12 The Tribunal concludes that in the absence of medical evidence the Applicant was unable to substantiate her claim for disability discrimination which therefore fails and is dismissed."[23]Mr Kibling put his challenge to this decision in a number of different ways, by reference to an alleged failure to apply the statutory scheme. He pointed out that, although section 1 is referred to by the Tribunal, there is no reference to section 53(a) which relates to the Guidance and/or Code of Practice; but in fact I do not think that was pursued because there is plainly in fact, as we now see it from the notes, reference to the Code of Practice and, in any event, nothing in the end turns on this point. But, more significantly, he referred to the absence of any mention in the Tribunal's Decision of Schedule 1, either paragraphs 4 or 6 thereof. He submitted that there was an error in the Tribunal's placing too much reliance on the absence of a medical report and/or that that showed a lack of appreciation of what was required under the Act. He submitted that there was an absence of reasons in the Decision. But by the end of his oral submissions, his case had really come down to a very short point centred around paragraph 6 of Schedule 1. He submitted that, there being no reference in the Decision to the provisions of paragraph 6 of the Schedule, the Tribunal had not addressed itself to the question of what Judge Peter Clark has called "deduced effect", namely the issue as to whether within paragraph 6 there would have been an impairment with a substantial adverse effect on the Appellant's ability to carry out normal day-to-day activities but for the fact that measures were being taken to treat or correct it. He submitted that had the Tribunal applied paragraph 6 they would have been entitled to conclude that the case was at least sufficiently arguable for there to be evidence called and cross examined on the part of the Appellant. He accepted that there was no medical evidence, and consequently that that rendered the Appellant's claim far weaker, but, he submitted that, on the basis of the indications which I have read out, given by the Appellant as to what her case was, as tested by the Tribunal, there was on the totality of it evidence from her, rather than from a doctor and certainly not supported by a doctor, which would at least arguably amount to a case as to what the deduced effects would have been had the treatment stopped. Consequently, the Tribunal erred in law, either in failing to consider paragraph 6 at all, or if it considered paragraph 6, in not concluding that the case for the Appellant was at least arguable and could proceed, even without medical evidence.[24]Mr Fletcher submitted that the Tribunal was right. He puts his case in two ways. He submits that either the Tribunal did have in mind paragraph 6 and asked themselves the right questions and gave themselves the right answers or, alternatively, even if they did not, that on the application of paragraph 6 on the information given by the Appellant, as to the nature of her claim and taking it, as one would have to do, at its highest and as accurate, always subject to any later cross examination, the claim was bound to fail as it did, and there would be no call to remit it for further consideration, because the same result would have been achieved, in the absence of medical evidence. He submits that the absence of medical evidence here is central because all that there was before the Tribunal, notwithstanding the particulars that the Appellant had given and the numerous requests made and, he submits, orders made, which ought to have directed the Appellant to produce any such medical evidence, was her unsupported assertion, and an assertion not of fact but of theory or opinion, which could not be described as evidence, any more than an assertion by an advocate could be so described. At the end of the day, the question as to what would happen if the treatment were withdrawn could only be got at in one of two ways, either the kind of medical evidence that there was in Kapadia or, at the very least, evidence from the Appellant herself as to what had happened during any recent period when she had had no treatment, because for some reason it had been stopped, or had been unavailable to her, from which it could be inferred what would happen if such treatment were now stopped, and then further inferred that such would amount to substantial and long-term impact on her every day activities, notwithstanding that, because of the treatment, there has been no such effect. Clearly, paragraph 6 is an unusual provision, because it effectively deems someone to be disabled, who is in practice not, and particularly so where to the average employer, perhaps to anybody, it would not appear that there was any disablement simply because of the effect of the treatment, and, he submits that in order to get the beginnings of a case within paragraph 6 it cannot be enough simply to assert what would happen but for the treatment, at least without some medical evidence or some factual evidence to corroborate it and, he says, it was absent.[25]Mr Kibling's response, apart from repeating his submission that one could not be confident that the same conclusion would have been reached if, as he submits was the case, the Tribunal did not apply paragraph 6 and/or did not have it in mind, is to point to one matter of evidence. He submits, by reference to the passage which I read, from which it is apparent that the Appellant was telling the Tribunal that she had had a nervous breakdown prior to 1991, that that was a fact from which it could have been inferred that had the treatment been discontinued in 1999 this debilitating condition would once again have resurfaced and, albeit that he accepts frankly that it would not have been a strong case in the absence of medical evidence and simply based on that one inference, it would and should have been a case which should have been tested and should have been allowed to go at least to half time before a Tribunal, rather than effectively ruled out from the beginning.[26]We are satisfied that this appeal should not be allowed. We do so on the following grounds. One, in the light of the questioning before the Tribunal that the Tribunal itself made of the Appellant, we are far from satisfied that the Tribunal did not have in mind paragraph 6, albeit that it was not expressly referred to in their Decision. It is certainly right to say that paragraph 6 is not so referred to, but the questioning itself must, we conclude, have been based at least in part upon the need to tease out from the Appellant whether there was a case that could be supported, under paragraph 6; and the decision which is set out in the paragraphs which I have read is, in our view, only explicable on that basis. For example, paragraph 12, where the Tribunal concludes that in the absence of medical evidence the Applicant was unable to substantiate her claim, can only be explained on the basis that the medical evidence in question which was absent was medical evidence on the deduced effects, namely as to what would occur if the treatment ceased, given that it was common ground, and clear, that there was medical evidence before them on the existence of the condition, and it cannot make any sense in our judgment at all if they were asserting that there was an absence of medical evidence, when all sides knew that there was not such an absence, and that the only basis on which paragraph 12 can be explained is the absence of relevant medical evidence on the paragraph 6 issue . Similarly, the reference to there being no evidence produced by the Applicant to the Tribunal cannot make sense if it is meant to say that the Applicant (of course, always treating the information she had given as provisional evidence) produced no evidence at all , but it can only in our judgment refer to the fact that the Applicant failed to produce any evidence within paragraph 6, ie anything more than her own unsupported opinion, as opposed to a factual description. But, that said, it is certainly right to say that the terms of the Decision are not as clear as one would have wished to have seen. It would have been perfectly possible for the Tribunal to have set out paragraph 6, to have set themselves the target of considering whether there was even an arguable case as to the question whether, if the treatment were discontinued, there would then be a condition which had a substantial adverse effect on the ability of the Appellant to carry out her normal day-to-day activities, and conclude that there was no such evidence, certainly none supported by medical evidence. Consequently, we agree with Mr Kibling that the decision is far from clear or satisfactory in its terms.[27]We have therefore, in the alternative, considered the question whether, had the Tribunal addressed the question in express terms, on the assumption that it did not, it would have been entitled and, indeed, obliged, to reach the same conclusion on the information that was then before them, and, to that end, we have ourselves looked at the information which we have already set out in this judgment. On this alternative basis, it is always important for an Appeal Tribunal to give every possible doubt to an Appellant, when considering the question as to whether there would be any benefit in remitting the hearing. Alternatively, put another way, the issue is whether the Employment Appeal Tribunal itself can be satisfied that, on asking the correct question, if indeed the Tribunal below did not ask itself the correct question which for this purpose I assume but do not find, the same result would have ensued.[28]The only matter that has caused us pause for thought is the last minute point made by Mr Kibling, by reference to the nervous breakdown prior to 1991. In this context it is, perhaps, necessary to remind ourselves as to what the treatment is that has been going on since 1991. It is not suggested that the treatment was at all continuous until 1997. There was only sporadic treatment from the period from 1993, if not earlier, onwards, and the regular twice weekly treatment only began in November 1997. It seems to us that the fact that the Appellant had an unfortunate nervous breakdown in 1991, but has had no further serious problem or problem materially sufficient to mention since then, negatives any inference that might be drawn from the fact that in 1991 there was this problem. Treatment which was only sporadic until 1997 and then more regular is not, it seems to us, likely to have been responsible for preventing the recurrence of a nervous breakdown which was suffered in 1991, nor does it seem to us that in the absence of such occasional treatment it would be likely to have recurred. Of course, medical evidence to the contrary might have assisted the Appellant, but there was none such, and we ask ourselves whether it is to be inferred from the existence of a nervous breakdown in 1991, without the support of medical evidence, even arguably that if the psychotherapy sessions were discontinued a substantial condition would now recur. Such conclusion is, in our view, not available on the evidence, and it does not fall to be inferred, particularly unsupported by medical evidence, from what was put before the Tribunal.[29]It is our judgment, therefore, that the Tribunal came to the right conclusion, that it did consider paragraph 6 and came to a conclusion which cannot be disturbed. Alternatively, if it did not consider paragraph 6 and had done so, it would in our view certainly have come to the same conclusion, namely that there was no arguable case for the Appellant, in the absence of medical evidence, that the deduced effect of discontinuance of her treatment would be a substantial adverse effect on her day-to-day activities, and in those circumstances this appeal is dismissed.