MS A POWER v PANASONIC UK LTD [2002] UKEAT 747_01_1709

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 747_01_1709Case No Appeal No. EAT/747/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS A POWERAPPELLANTPANASONIC UK LTDRESPONDENT
Before
Ms Recorder SladeDate 17 September 2002
[1]APPEARANCES For the Appellant MR P COPPEL (of Counsel) Instructed by: Messrs Bircham Dyson Bell Solicitors 1 Dean Farrar Street London SW1H ODY For the Respondent MR D READE (of Counsel) Instructed by: Messrs Boyes Turner Solicitors Abbot House Abbey Street Reading RG1 3BS MS RECORDER SLADE QC This is an appeal against the unanimous Decision of an Employment Tribunal that Annette Power had failed to show that she was disabled within the meaning of the Disability Discrimination Act 1995 . The Employment Tribunal made this Decision on a preliminary point.[2]Ms Power had brought proceedings against her former employer, Panasonic UK Ltd, complaining that she had been unfairly dismissed, that she had been discriminated against contrary to the Disability Discrimination Act , and that her former employers were in breach of contract. Her complaints are principally about her summary dismissal by Panasonic UK Ltd on 4 November 1998. In addition, other allegations that she had been subjected to a detriment contrary to the Disability Discrimination Act were made.[3]Two grounds of appeal were permitted to proceed following a preliminary hearing before the Employment Appeal Tribunal. The first point is that the Employment Tribunal erred in law in its approach to the question of whether Annette Power had a disability within the meaning of the Disability Discrimination Act in that it failed to consider whether at the material time depression had a substantial and long term adverse effect on her ability to carry out normal day-to-day activities. Instead, it is said the Employment Tribunal wrongly considered whether alcoholism had caused depression or whether depression had caused alcoholism. Secondly, it is said that the Employment Tribunal's conclusion that the Appellant's phobic anxiety was not a disability within the Disability Discrimination Act was perverse.[4]The sad facts of this case are briefly stated as follows. Annette Power was employed by Panasonic UK Ltd from 2 January 1991 until 4 November 1998 as an Area Sales Manager for facsimile machines, sales and service. After Easter 1997 her employers undertook a reorganisation which affected the Appellant, she says adversely, in that her client base changed. In about September 1997 Panasonic reduced the number of Area Sales Managers from seven to four, and increased the geographical area Annette Power was expected to cover.[5]In early October 1997 Annette Power was signed off sick. She was by then drinking heavily. She remained off work until her dismissal on 4 November 1998. It was not in dispute before the Employment Tribunal that during the period between October 1997 and November 1998 Annette Power was both depressed and was drinking heavily. Before the Employment Tribunal each party adduced expert evidence from a Consultant Psychiatrist. Both experts agreed that Annette Power suffered from depression and abused alcohol. Each tried to identify which came first.[6]For Annette Power, Mr Coppel attacks, on the first point, certain passages in the Employment Tribunal's Decision. In particular he attacks the approach of the majority in paragraph 18 of the Decision in which it concluded that the provision in the Disability Discrimination (Meaning of Disability) Regulations 1996 which provided that for the purposes of the Act, alcohol addiction is excluded as an impairment for the purposes of the statutory definition of disability, superseded, and was to be given greater weight than Guidance (Guidance on matters to be taken into account in determining questions relating to the definition of disability) which, it is said, provided that a different approach should be adopted. It is said by Mr Coppel that the minority member of the Employment Tribunal, Mrs Audars, adopted a correct approach when she said that the 1995 Act imposes a duty on Tribunals to consider the Guidance and therefore it has to be given its full weight, even if it conflicts with the express terms of the Act. The particular provision in the Guidance upon which Mr Coppel relies is paragraph 11 which provides that Tribunals should not have regard to the cause of a disability, even if that cause of itself would not amount to a disability or an impairment within the meaning of the Act, such as addiction to alcohol.[7]Further, Mr Coppel attacks the final sentence in paragraph 24 of the Decision in which the Tribunal said this:
"…If, on the other hand, the tribunal were to find that the Applicant's primary condition was alcohol addiction from which depression was a symptom or manifestation, (as contended by Dr Joyston-Bechal) it would conclude that the Applicant falls outside the scope of the Act, by virtue of the application of the 1996 Regulations."
He also relies on the final sentence in paragraph 25 of the Decision as indicating an error of approach of the Employment Tribunal. In that sentence the Tribunal said this:
"…….However it does not assist in deciding the core issue of did the Applicant become clinically depressed and turn to drink, or did these events lead to alcohol addiction, producing depression?"
[8]Turning now to the arguments advanced on behalf of the Respondent by Mr Reade. First of all he says that the Appellant is precluded from relying on any arguments relating to the Guidance and the Regulations by reason of a concession which he says was made before the Employment Tribunal as to what were the material issues it had to decide. He then says that although the Tribunal may have erred in its observations in paragraph 18 of the Decision and in the final sentence of paragraph 24 of the Decision, nonetheless, when it came to considering the evidence before it in paragraph 25, it adopted an entirely correct approach and a permissible approach on the evidence before it, which displayed no error of law.[9]Turning now to the relevant statutory provisions, the Disability Discrimination Act section 1(1) provides:
"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."
Section 3 gives power to the Secretary of State to issue guidance. It provides, by subsection (1):
"The Secretary of State may issue guidance about the matters to be taken into account in determining - (a) whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities; or (b) whether such an impairment has a long-term effect."
Section 3 empowers the Secretary of State to issue guidance. Schedule 1 paragraph (1)(2)(b) provides that "(2) Regulations may make provision, for the purposes of this Act - (b) for conditions of prescribed description to be treated as not amounting to impairments".[10]Guidance under section 3 of the Act has been issued and that provides under paragraph 8:
"Certain conditions are not to be regarded as impairments for the purposes of the Act. These are:- ( addiction to or dependency on alcohol, nicotine, or any other substance (other than in consequence of the substance being medically prescribed);"
Paragraph 11 provides:
"It is not necessary to consider how an impairment was caused, even if the cause is a consequence of a condition which is excluded. For example, liver disease as a result of alcohol dependency would count as an impairment"
Regulations have been issued pursuant to the Schedule 1 powers. Those are the Disability Discrimination (Meaning of Disability) Regulations 1996. Excluded as an impairment for the purposes of the Act are, in paragraph 3, subject to paragraph 2 of that paragraph "addiction to alcohol, nicotine, or any other substance".[11]In our judgment both the minority and the majority of the Employment Tribunal erred in paragraph 18 of the Employment Tribunal's Decision in considering that there may be a conflict between the Guidance and the Act. Both the Regulations which are relied upon by the majority in amplifying the Act and the Guidance were introduced pursuant to enabling provisions in the Disability Discrimination Act . The powers enabling on the one hand, Guidance, and on the other, Regulations to be introduced, are different and the purpose of the Guidance and the Regulations is different. In our judgment there is no conflict between the Guidance and the Act or the Guidance and the Regulations.[12]Further, in our judgment, the Employment Tribunal erred in its approach as evidenced in the last sentence of paragraph 24 of its Decision. It is not material to a decision as to whether a person is suffering a disability within the meaning of the Act, to consider how the impairment from which they are suffering was caused. What is material is to ascertain whether the disability from which they are suffering at the material time is a disability within the meaning of the Act or whether, where it is relevant as in this case, it is an impairment which is excluded by reason of the Regulations from being treated as such a disability.[13]We have carefully considered Mr Reade's submissions that despite these errors in the Tribunal's Decision, when it came to considering the facts of this particular case, its Decision was not tainted by the earlier errors. The terms in which the Employment Tribunal expressed itself in paragraph 25 preclude such an approach. Having referred to the medical evidence in the case, the Tribunal say this:
"However, it does not assist in deciding the core issue of did the Applicant become clinically depressed and turn to drink, or did these events lead to alcohol addiction, producing depression?"
That identification by the Tribunal of what it describes as the "core issue" indicates strongly that in its decision making process it considered that it was important to understand what had caused the impairment from which the Applicant was suffering at the material time. That, in our judgment, betrays an error of approach and in our judgment, that error is so serious that the Decision of the Tribunal on the preliminary point cannot stand.[14]We now move on to the second ground of appeal. It is said by Mr Coppel that the Decision of the Employment Tribunal that it was not satisfied that the Applicant suffered from phobic anxiety or that even if she did, that it was substantial or that it had a long term effect within the meaning of the Act, was a perverse conclusion. Mr Coppel attacks the Tribunal's finding in paragraph 21 of its Decision on this point. He relies upon various inaccuracies in the Tribunal's findings. In particular he says that the Tribunal wrongly implied that the Applicant had not raised the complaint about her phobic anxiety attacks before the day of the hearing before the Employment Tribunal. In attacking that view as a perverse view, he refers to panic attacks being referred to in the Originating Application.[15]Secondly, he complains that the finding that the panic attacks were not long-term as perverse, having regard to the medical evidence, in particular that adduced on behalf of the Respondent pointing out the passages in the report of the medical expert which refer to panic attacks of some long-standing.[16]Third, he says it was perverse for the Tribunal to conclude that the Applicant did not give detailed evidence relating to the effect that those panic attacks had on her day-to-day activities. Mr Reade, for Panasonic, says that the Employment Tribunal were entirely correct in concluding that there was no evidence that panic attacks had a substantial adverse effect on the Appellant's ability to carry out normal day-to-day activities.[17]In our judgment whilst there may be grounds for attacking the conclusions of the Employment Tribunal as to whether panic attacks were long-term, in our judgment the conclusion that panic attacks or anxiety phobia did not have a substantial effect on the Appellant's ability to carry out normal day-to-day activities is not a finding that could be said to be perverse.[18]It is to be noted that Annette Power gave no evidence to the Tribunal of the effect of her panic attacks on her ability to carry out normal day-to-day activities. All the evidence that was before the Tribunal on this point was in the medical statements and principally that of the Respondent's expert. Having reviewed that evidence, in our judgment, the conclusion of the Tribunal on this point cannot be said to be perverse.[19]Accordingly, we allow this appeal on the first ground of appeal and we remit the case for rehearing of the preliminary point as to whether Annette Power, at the relevant time, had a disability within the meaning and for the purposes of the Disability Discrimination Act .[20]The case is to be remitted to the same Employment Tribunal, if practicable, or such Employment Tribunal as directed by the Regional Chairman.