EAST SUSSEX COUNTY COUNCIL v MR D C HANCOCK [2003] UKEAT 0353_03_0511

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 0353_03_0511

Case No Appeal No.UKEAT/0353/03

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

EAST SUSSEX COUNTY COUNCILAPPELLANT

MR D C HANCOCKRESPONDENT

Before

Mr Justice Burton

Date 5 November 2003

[1]APPEARANCES For the Appellant MR A WITHINGTON (of Counsel) Instructed by: East Sussex County Council Director of Legal & Community Services Pelham House St Andrews Lane Lewes Sussex For the Respondent MR T SISLEY (of Counsel) Instructed by: Messrs Graham Clayton Solicitors 14-16 Sussex Road Haywards Heath West Sussex RH1 4EA THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This is an appeal by East Sussex County Council against the Decision of the Employment Tribunal sitting in Ashford, Kent, on an application by Mr Hancock, a recently retired teacher formerly employed by the Respondent, for disability discrimination The particular hearing was a preliminary hearing on the issue as to whether the Applicant had a disability for the purposes of the definition contained in the Disability Discrimination Act 1995 . The Tribunal concluded that he did have such a disability within the Act and, subject to this appeal, the next step would be to go forward to a hearing on the issue of whether in fact the Respondent discriminated against him.

[2]So far as the discrimination is concerned, that is said in his Originating Application to have occurred in May/June 1992. In fact, his last working day at the Respondent's school was on 19 September 2001 and he remained off sick until his eventual retirement on health grounds, with effect from 30 November 2002. Whereas the alleged discrimination was thus specifically alleged in the Originating Application to have occurred in that short window of time of May -June 1992, Mr Sisley, who has appeared as Counsel for Mr Hancock before us, not having appeared below, has made it clear that so far as the Applicant is concerned, the Further and Better Particulars which he served subsequent to the Originating Application, extends the claim for discrimination back to at least September 2001.

[3]Those Further and Better Particulars allege, for example, a failure by the College to supply sufficient software to enable him to teach the number of students that he had, and that the maximum class size of twenty students was exceeded in all of his classes, and that that was a continuing state of affairs.

[4]We are told that, subsequent to the hearing on 24 January 2003 against which this is an appeal, there has been an application by the Respondent to strike out any claim in respect of a period prior to May/June 2002, the subject matter of the Originating Application, on grounds either that such period does not fall within the claim, or that it is out of time, or both; and that such application has been stood over to come on to be heard at the eventual full hearing of this matter. It is thus clear that it will be necessary for the Tribunal hearing the full matter to decide not only what matters of discrimination, if any, were committed by the Respondent but also the date or dates upon which such discrimination occurred.

[5]Mr Sisley has, further, in the course of his submissions to us, indicated that he, on behalf of the Applicant would be minded to allege that there were continuing acts of discrimination subsequent to June 2002, in the sense of matters which would have dissuaded or deterred the Applicant from returning to work at all times prior to his eventual retirement, which would thus, if such were permitted to fall within the ambit of these proceedings, mean that the period of disability would need to be shown to have covered the entire period of the alleged discriminatory acts, which would thus on that basis be from September 2001 through to the end of November 2002.

[6]We mention this detail for this reason: the Tribunal, in deciding the question as to whether the Applicant was disabled within the meaning of the 1995 Act, at no stage, on the face of the Decision, directed itself as to the date at which it was considering that question, and in fact it would appear clear that the relevant date was May/June 2002, although embryonically no doubt it might have been suggested, because of the as yet un-emphasised Further and Better Particulars, that it could have related to an earlier date. Had it been clear that it was May/June 2002 that the question arose, then the Tribunal might have had a more focused question to answer, and Mr Withington, of Counsel, relies, on behalf of the Respondent on that as part of his complaint that there was a lack of focus.

[7]The law is not in issue between the Counsel, Mr Sisley and Mr Withington before us, as it turns out. Although Mr Withington has properly referred us to Greenwood -v- British Airways PLC

[1999] ICR 969

, whereby, particularly where the question of whether the disability complained of has long term effect, it is necessary to look forward to the hearing, and indeed backwards, here there was no issue as to the long-termness of the alleged disability. So Cruickshank -v- VAW Motorcars is accepted by both sides as being determinative of the question as to the date when the disability should be tested, particularly of course here on a preliminary issue. Cruickshank -v- VAW Motorcars Ltd

[2002] IRLR 24

makes it plain that the point of time at which to assess disability is at the time of the alleged discrimination - see per H H Judge Altman at paragraphs 26 and 27.

[8]We allowed an amendment of the Notice of Appeal by Mr Withington. The application arose in these circumstances. He alleges that the Tribunal failed to identify or address the date at which it was asking itself the question, and so erred in making what he submits to be a broad brush conclusion that there was the relevant disability, without having specifically addressed the correct time. That would amount to an error of approach in law.

[9]Mr Sisley's response to that was that there was in fact an implicit conclusion, if not explicit, that the condition remained the same throughout the period, so that it would be unnecessary for the Tribunal to have pinpointed any particular date, and he points in particular at paragraph 25 of the Tribunal's Decision which reads:

"…. the medical reports indicate that his condition has not improved overall since going off sick from work in September 2001"

It is right to say that Mr Withington also points to the last sentence of that same paragraph in which the Tribunal say: "We find that that ability is substantially impaired, and has been since the time when the alleged acts of discrimination occurred." which at least, from one point of view, could be read as directing itself to the wrong period in terms.

[10]However in any event Mr Withington's amendment effectively comes by way of reply to the point made by Mr Sisley. He submits that, if in fact the Tribunal can be justified in not having identified specifically the time at which it was making the determination, by reference to an implied or express finding that the condition was stable throughout, then any such implicit conclusion by the Tribunal was itself perverse, and he points to evidence from doctors at the end of 2001 and early 2002, which appear to show the Applicant improving in health, as between September 2001 and March 2002; and he further points to a finding by the Tribunal itself, in paragraph 13 (x), that the Applicant's medication was increased on 21 October 2002, which might suggest that in recent months his condition has worsened.

[11]We recite that by way of background, but the centrality of the appeal has related to the question unconnected with the issue of the precise time when the alleged disability can be identified, but going to the question as to whether there was a disability within the act at all during the relevant period.

[12]Mr Hancock was clearly an experienced teacher at one of the Respondent's schools and it appears that he began to suffer stress at some stage after there was a change of Head Teacher at his school. In a medical report from a Dr Malik, Consultant Psychiatrist with the Hastings and Rother NHS Trust, dated June 2001, Dr Malik recorded that Mr Hancock had been teaching design and technology and information technology at his school, that he was also involved as a Governor for another school, and sat on the Board of Hastings Council, and that apparently, as Dr Malik put it, he had suffered increasing stress at his job since the present head teacher in the school took office three years ago:

"Mr Hancock has felt unsupported and feels that in as much as the job is stressful, in having to work with adolescents and children, it has been made worse by the policies and unsympathetic attitude of the headmaster."

[13]So far as his being involved in other activities are concerned, that was referred to by the Applicant himself in his evidence, which is recorded in the helpful and clear notes of evidence which have been supplied by the Chairman. He referred to the fact that he had been a Councillor for twelve years and sat on a number of committees; that he had chaired committees such as Housing and Review Benefit and that he was at the time of the hearing Vice-Chairman of the Planning Board, sifting through and approving planning applications. His evidence read as follows:

"Between January and April last year" [that is January 2002 to April 2002] "

I was Chairman. I still sit on the Committee. Most meetings last 50 minutes to one and a half hours. One has the opportunity to read the papers in advance. One has the opportunity to speak with officers before the meeting. Concentration for a long period of time is not an issue." It is accepted that that is a somewhat ambiguous statement, but it may well apply to the fact that concentration for more than one and a half hours is not required if the meeting is only lasting that long, and he continued:

"Being Vice-Chairman is not an onerous task …… I sat in the Chair between January and April 2002. I am Vice-Chair as from 1 May. I also sit on the Museums Committee and I sat as Chair in the last year. I Chair a Regional Committee, it never sits. It may have sat on 20 May 2002. I sit on a Standards Committee, a Traffic Management Committee and a Hastings Area Committee …… I sit on six committees, I am Chairman of one and Vice-Chairman of another. I am not aware that no Councillor sits on more, but if you say so, yes."

And then he adds:

"I am also a School Governor. I was Vice-Chairman in the year up to September 2001. I did not attend very many meetings."

[14]The Tribunal's conclusions in relation to this are at paragraph 13 (i) of its Decision as follows:

"Mr Hancock has served as a Councillor on Hastings Council for 12 years. He went off sick from work in September 2001 and did no council work between then and January 2002. Since then he has continued such work, chairing a Planning Board between January and April 2002, chairing and continuing to chair an Overview and Scrutiny Committee, which scrutinises and makes recommendations to the Council on regeneration and tourism, transport and the environment. He is now Vice-Chairman of the Planning Board and sits on four other Committees"

[15]It is common ground that he has suffered from a mixed anxiety and depression disorder since early in 2001. He was diagnosed by doctors and further confirmed in such diagnosis by Dr K K Zakrzewski, Consultant Psychiatrist at the Eastbourne Clinic as falling within F41.2 in the World Health Organisation Guide to Mental Health in Primary Care, namely a chronic mixed anxiety and depression disorder. There was thus no issue about the fact that he had a relevant condition for the purposes of the Act. There was also no dispute about the fact that that disorder was long-term, sufficient to fall within the Act.

[16]The other parts of the definition under the Disability Discrimination Act were, however, what was in issue between the parties. A disabled person is defined under the Act by section 1 as one who 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"

What was therefore in issue before the Tribunal was whether the mental impairment, which was common ground to be constituted by the disorder to which I have referred, had an effect on his ability to carry out normal day-to-day activities and as to whether that effect was substantial. 17 So far as effect on day-to-day activities is concerned, there is considerable help to be obtained from Schedule 1 to the Act, paragraph 4 of which reads in material part as follows:

"An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following" and then a number of sub-paragraphs are set out.

(h) perception of the risk of physical danger"

So far as the question of "substantial" is concerned, it was found by the Tribunal and correctly so, and accepted by the parties, that that means more than "minor" or "trivial" and the Tribunal correctly referred to Goodwin -v- The Patent Office

[1999] IRLR 4

. Of course, although it is a separate question to consider whether the effect is substantial, the real issue is whether there was an effect on the normal day-to-day activities; once that effect is recognised and identified, then there is still the need to weigh it to see whether it is more than "minor" or "trivial" i.e that it is substantial.

[18]In gauging whether there is effect on day-to-day activities, it is necessary to look at the guidance issued by the Department for Education and Employment under the Disability Discrimination Act 1995 section 3, which came into force on 31 July 1996 SI/1996. Part IIA of that Guidance deals with the question of what is "substantial" and contains the description to which I have referred, that: "A "substantial" effect is one which is more than "minor" or "trivial".

[19]So far as this case is concerned, the central provisions have been those which amplify and explain paragraphs 4(1)(g) and 4(1)(h) of the Schedule.

(g) is supplemented by section C20, which reads as follows:

"Account should be taken of the person's ability to remember, organise his or her thoughts, plan a course of action and carry it out, take in new knowledge, or understand spoken or written instructions. This includes considering whether the person learns to do things significantly more slowly than is normal. Account should be taken of whether the person has persistent and significant difficulty in reading text in standard English or straightforward numbers."

And then in the two following paragraphs, examples are given. "1473 It would be reasonable to regard as having a substantial adverse effect - • intermittent loss of consciousness and associated confused behaviour; • persistent inability to remember the names of familiar people such as family or friends; • inability to adapt after a reasonable period to minor change in work routine; • inability to write a cheque without assistance; • considerable difficulty in following a short sequence such as a simple recipe or a brief list of domestic tasks. 1474 It would not be reasonable to regard as having a substantial adverse effect - • occasionally forgetting the name of a familiar person, such as a colleague; • inability to concentrate on a task requiring application over several hours; • inability to fill in a long, detailed, technical document without assistance; • inability read at faster than normal speed; • minor problems with writing or spelling."

[20]So far as 4(1)(h) is concerned, it is made clear that the perception of the risk of physical danger which is listed in the Schedule can be either an over-perception or an under-perception in order to qualify within the sub-paragraph, and C21 reads as follows:

"This includes both the underestimation and overestimation of physical danger, including danger to well-being. Account should be taken, for example, of whether the person is inclined to neglect basic functions such as eating, drinking, sleeping, keeping warm or personal hygiene; reckless behaviour which puts the person or others at risk; or excessive avoidance behaviour without a good cause."

And then there are examples:

"1476 It would be reasonable to regard as having a substantial adverse effect - • inability to operate safely properly maintained equipment; • persistent inability to cross a road safely; • inability to nourish oneself (assuming nourishment is available); • inability to tell by touch that an object is very hot or cold."

And 1477 "It would not be reasonable to regard as having a substantial adverse effect - • fear of significant heights; • underestimating the risk associated with dangerous hobbies such as mountain climbing; • underestimating risks - other than obvious ones - in unfamiliar workplaces."

[21]The Tribunal had the benefit of oral evidence from only two witnesses on this preliminary issue, as to whether there was a disability for the purposes of the definition in the Act. The Applicant himself gave oral evidence and the Respondents called Dr Zakrzewski who had examined the Applicant not for the purposes of the hearing or, indeed, as the Respondents' expert witness, but instructed, as we understand it, by the company running the Respondents' pension scheme for the purpose of consideration as to whether he would or could qualify for early retirement. Fortuitously, such examination took place very close in time to the periods which were, as we have earlier indicated, primarily pleaded, if not solely pleaded, as the dates of the alleged discrimination, namely May/June 2002.

[22]The first report of Dr Zakrzewski, which was described as a psychiatric report, Dr Zakrzewski being based at the Eastbourne Clinic, was based upon an investigation on 2 July 2002, and the supplementary report, described as an addendum psychiatric report, was completed on 30 September 2002, based upon, among other things, a HAD scale completed on that day, which was apparently a commonly used scale developed by Snaith and Zigmond in 1983 as a measure of anxiety and depression; and Dr Zakrzewski records that the scores rated in September 2002 indicate both anxiety and depression of a clinically significant level in relation to the Applicant.

[23]It was common ground below that Dr Zakrzewski was a very distinguished Consultant Psychiatrist, and that he was likely to be the person best equipped to know about the mental condition of the Applicant. We say that because there were other documents put in before the Tribunal from doctors who were not called by either side, and, of course, those doctors' reports were admissible and admitted in evidence, but, naturally, did not carry the same weight as that of a specific expert with close knowledge of the relevant patient, giving evidence both in-chief and in cross-examined at the relevant Tribunal.

[24]Further, the County Medical Adviser, Dr McKee, whose documents were also before the Tribunal, but was not called and who is mentioned by the Tribunal, specifically says in his memorandum of 11 October 2002:

"My knowledge of this man is limited and is certainly insignificant when compared with the report of a Consultant Psychiatrist."

For the purposes of this appeal, it has been common ground that what should be looked at, so far as the medical position is concerned, is primarily the evidence of Dr Zakrzewski, and no reliance has been placed by either side on the contents of the report of Dr McKee; the case has effectively stood or fallen on the report of Dr Zakrzewski.

[25]It has also been common ground, because both sides have to an extent relied upon it, by reference to Vicary -v- British Telecommunications PLC

[1999] IRLR 680

, that the conclusion of a Tribunal in a case such as this is its own conclusion. On the one hand the medical expert is not there to reach legal conclusions, which to an extent Dr McKee wrongly sought to do; but, equally, the Tribunal is not bound to accept the evidence of the expert. The Tribunal must consider the expert evidence alongside the factual evidence, using, as Morison P said at paragraph 16, "their basic common sense".

[26]The conclusion that the Tribunal reached was that there was a substantial effect on the Applicant's day-to-day activities, by reference to both sub-paragraphs 4(1)(g) and 4(1)(h), although so far as the latter is concerned, the circumstances were somewhat unusual. The Applicant did not himself rely upon paragraph 4(1)(h) of Schedule 1 and said so in evidence, as we understand it, but in paragraph 21 of the Decision, the Tribunal stated:

"The Applicant did not himself rely upon the matter set out at paragraph 4(1)(h) of schedule 1, namely perception of the risk of physical danger, but in view of the fact that he was not represented at the hearing, and of the matters set out [in paragraph 13] above, we do find that such perception does affect the Applicant's ability to carry out normal day to day activities."

[27]Dr Zakrzewski had not dealt with the question arising under 4(1)(h) in his report; there was mention, mainly to Dr Zakrzewski and, indeed of course in the light of the scores on the HAD Scale such was no surprise, of the Applicant suffering from anxiety, but there is no reference in his reports, and nothing was dealt with by him in his evidence in relation to alleged over-estimation of danger, but the Tribunal so found.

[28]But the Tribunal also found that there was established within paragraph 4(1)(g) a substantial effect on day-to-day activities by reference to loss of memory or ability to concentrate. The Tribunal does, of course, refer in its Decision to Dr Zakrzewski, and it also refers to the evidence of Mr Hancock and the findings of fact that it made as a result of that evidence. I shall summarise those two important aspects to this case separately.

[29]The Tribunal, in paragraph 11 quotes from Dr Zakrzewski's first Report as follows:

"He says he [that is Mr Hancock] feels able to cope, as long as he is not at the school" "

Mr Hancock cannot enjoy reading as his concentration is now poor. He is no longer on boards such as housing, art etc. He feels that his life has diminished by thirty per cent." Then the Tribunal in the same paragraph records part of his Addendum Report:

"In terms of symptoms Mr Hancock continues to suffer with the following:- Poor sleep pattern - waking frequently in the night and finding his sleep unrefreshing. Concentration - for short periods, fair. Prolonged concentration, poor. Motivation - low, little interest in anything. Anxiety - this seems specific to reminders of school, worries about youngsters. Demonstrated in blushing and sweating. Can also be "free floating" and attached to other triggers. Anger, irritability - generalised lack of patience, over-sensitive. Mood - overall stabilised at a low level."

And the Tribunal then continued:

"The report indicates reduced social activities, due to loss of interest, and that Mr Hancock occasionally spends time with friends but does this through a sense of duty rather than a source of pleasure. The report continues by indicating that Mr Hancock is cognitively intact, that his thought forms are normal, but that his thought content indicates that he is pre-occupied with his current position. The diagnosis of Dr Zakrzewski is that Mr Hancock has mixed anxiety and depressive disorder and that there has been no change in the condition's intensity since Dr Zakrzewski last saw Mr Hancock, although the condition has now become chronic."

[30]Apart from commenting for the moment, and this point will become clear when we turn to the parts of such report that were not quoted by the Chairman, that this is only a selection of what was contained in Dr Zakrzewski's report, it is perhaps significant to point out at this stage:-(a) that the Tribunal does not specifically distinguish between that part of Dr Zakrzewski's report, which is simply recording, without comments, what he is anecdotally being told by the Applicant, and his own conclusions;

(b) that it is not at that stage referred to or, indeed, at any stage in the Decision, that C20 of the Guidance, to which I have referred, suggests that a default or a failure in prolonged concentration may not necessarily amount to sufficient to fall within 4(1)(g);

(c) that the anxiety that is referred to, including worries about youngsters, was demonstrated in blushing and sweating, according to what Dr Zakrzewski has been told, and there was no mention at that stage about the matters which subsequently form part of the Tribunal's conclusion about perception of the risk of physical danger.

[31]It may be that this anxiety, and the blushing and sweating that is referred to, is consistent with another way of putting that which Dr Aziz had recorded in his letter of 16 November 2001, when, at a time when the Applicant was still hoping to resume his duties at school in December, it was recorded that he had been feeling better and much less stressed during this period, "however he stills get anxious to the extent that he avoids even going to the area in which the school is located."

[32]In paragraph 14 of the Tribunal's Decision, the Tribunal returns to refer to Dr Zakrzewski as follows:

"Dr Zakrzewski drew our attention to the fact that after seeing Mr Hancock on 30 September 2002 his report recommends that the treatment be continued as before and states that Mr Hancock's capacity for continuing his employment as a teacher has not been retrieved and he is permanently incapacitated for any teaching. He told us that he understood that there was some lowering of function in areas not related to Mr Hancock's teaching, but that such a lowering of function was more significant when associated with the school."

Then, in reaching its conclusions, the Tribunal makes two further references to Dr Zakrzewski first of all in paragraph 16, in which the Tribunal records:

"We accepted Mr Withington's submission that there is no specific reference to memory loss in any of the medical reports, but we have noted that there are references to poor concentration in Dr Zakrzewski's reports, which we have quoted at paragraph 11 above."

Then at paragraph 23 the Tribunal says:

"In any event, the Applicant's obsession with the horrors" as the Tribunal describes them "of his most recent teaching experiences have affected his memory, concentration and ability to learn or understand to a more than minor degree. His anxiety is accepted in the addendum report of Dr Zakrzewski when he states that such anxiety can be free floating and attached to other triggers."

Those are the references which are made to Dr Zakrzewski in the Tribunal's Decision.

[33]It is clear that there are significant parts of the evidence, and above all significant parts of the oral evidence of Dr Zakrzewski, which do not feature, at any rate clearly, in the Tribunal's Decision. We turn to summarise those two Reports.

[34]As to the first report, there is certainly the anecdotal part of the report which contains those passages which have been quoted by the Tribunal. The report then continues:

"On Examination: Consciousness - clear Affect - appropriate, mainly sad Behaviour and Appearance - appropriate Thought Content - pre-occupied with current predicament and schools Thought Form - normal, no abnormal thoughts or precipitants"

The diagnosis is then put in very shorthand form, simply recording "F41.2", to which we have already referred as being a depressive disorder so categorised in the WHO Guide to Mental Health in Primary Care. That document, which we have been shown and was before the Tribunal, refers to the fact that there are diagnostic features to the disorder; the patient may present with one or more physical symptoms, e.g. various pains, poor sleep or fatigue, accompanied by a variety of anxiety and depressive symptoms which will have been present for more than six months. The diagnostic features are low or sad mood, loss of interest or pleasure and prominent anxiety or worry. There is then a list of some dozen multiple associated symptoms, one or more of which may be present. They are said to be usually present, but only by way of example. One of those dozen multiple associated symptoms is poor concentration, but as was conceded before us, it is by no means, on any reading of that document, a necessary condition or any more than an example of a symptom that may be present.

[35]The opinions and recommendations of Dr Zakrzewski at the closure of that Report are, as one would expect, given the remit of that Report, which was to consider whether the Applicant could qualify for early retirement, dedicated towards a conclusion as to whether, in the light of suffering from that disorder, he was capable of continuing to teach, and the conclusion is, at that stage, that, although he was then unfit to teach, it was not yet clear whether that incapacity would be permanent.

[36]So far as the Addendum Report is concerned, once again the anecdotal report given to Dr Zakrzewski by the Applicant, to which he does not record any disagreement in his Report, is first set out, and those passages are fully recorded in the Tribunal's Decision. The report on examination reads, crucially, as follows:

"Consciousness - clear Cognitively - intact Intelligence - high average Affect - appropriate, mainly sad Thought Form - normal Thought Content - preoccupation with current position Overall Appearance and Behaviour - rather dejected looking, cooperative to interview process"

[37]To the uninitiated, in which number we categorise ourselves, and presumably also the Chairman and members of the Tribunal, that Examination Report was not wholly clear, but, correctly, and understandably, in-chief Dr Zakrzewski was taken through his report by Mr Withington, who as we have indicated, appeared below as well as before us, and we have the benefit of the Notes of Evidence, in which he expands on that evidence and explains it, and this is the central part of the evidence which is not referred to at all in the Tribunal's Decision. He was first asked questions by reference to the first report and his evidence is recorded by the Chairman as follows:

"On examination it would not appear that he had difficulty in concentrating. Examination of one and a half hour duration, Examination is based on objective data, ie what I observe."

[38]In cross-examination by Mr Hancock, Dr Zakrzewski was asked clearly how long the first interview with the doctor took, and he answered:

"At our first meeting we were together 35 - 40 minutes …… I was assisted by a Mental Nurse colleague, and if you add her time you get one and a half hours"

He was then asked further, in relation to the first Report; and, so far as that is concerned, it is clear from the Chairman's Notes that he was asked about paragraph 21 of the first Report, which recorded that Mr Hancock:

"says he feels able to cope as long as he is not at the school."

And the evidence of Dr Zakrzewwski was recorded as follows:

"There must have been several questions, eg "how do you cope generally? Then we go on to specific situations. "

I understand there was some lowering of functioning in other areas and significant lowering in school"

[39]Understandably, Mr Sisley submits that that is an ambiguous statement as to what is meant by "other areas", but the Chairman's Notes then continue as follows, in what appears to and what was accepted by both Counsel before us, a central passage, and it reads as follows. He was asked about Cognitive Ability (that is recorded with a question mark) and it plainly relates, as it seems to us, to the Addendum Report where, as we earlier recited, Dr Zakrzewski has recorded "Consciousness - clear Cognitively - intact" The Chairman records as follows:

"That equals functioning intellectually, clarity of thought and perception, concentration in time, place and person, and comprehension, memory in terms of recall of facts as well as short term memory, ie method of travel, breakfast, on the day, logicality of thought and consistency. No morbid phenomena, ie seeing or hearing things. Concentration is there between consciousness and cognitive status."

[40]It appears plain to us what it meant by that, namely that the question of concentration is covered by the combination of the questions relating to consciousness being clear, and cognitivity being intact, and he continued:

"There may have been some concentration problems in discussing school as anxiety levels were rising. Consciousness and cognitive functions were intact in other areas."

And it appears to us that that is clarification of any ambiguity that there may have been in the recording of the earlier question. Then the notes read as follows:

"The Guidance" which is obviously reference to C20 "

Memory or ability to concentrate, learn or understand. No intermittent loss of consciousness and associated confused behaviour, no persistent inability to remember the names of familiar people such as family or friends, but I did not check-list it" and that answer is clarified in cross-examination by Mr Hancock when the Chairman records Dr Zakrzewski as answering:

"My check-list did not contain the items set out in the guidance" and he continued: "

There would be no inability to write a cheque without assistance or inability to adapt after a reasonable period to minor change in work routine."

[41]It appears clear to us from that beyond doubt that Dr Zakrzewski was saying and clarifying not only what he had written originally, confirming now and explaining orally, by reference to his full examinations of Mr Hancock, on 1 July and 30 September 2002, that, save for the possibility of some impact as far as school was concerned, on his concentration problem when he was discussing school, that he had no effect on his day-to-day activities by way of loss of concentration or memory. Of course he was not setting himself up as replacing the Decision of the Tribunal by being taken through the examples in C20, but when he was taken through the examples, he confirmed that, in his judgment, none of them applied.

[42]The Tribunal was plainly not obliged to accept that evidence; it had to apply its own common sense, but the evidence from the only expert called, and one who had plainly not only extreme expertise but also the fullest possible opportunity for a clinical examination, was very persuasive on any basis.

[43]The Tribunal also recorded in its Decision the evidence which it had heard from the Applicant, and that is set out in paragraph 13, which records that the Tribunal found the Applicant to be a reliable witness and made the following findings of fact.

[44]We have already read, earlier in this judgment, evidence relating to the extremely busy and successful life that he had and continued to have in wearing his hat of Councillor. There is no mention there of his also being a School Governor, but that is referred to in paragraph 18 of the Decision in which the Tribunal said:

"In any event the fact that he is able to carry out these council activities and to remain as a School Governor does not mean that he does not have a substantial impairment as regards normal day to day activities"

The evidence which plainly impressed the Tribunal is set out in sub-paragraphs (ii) to (ix) of paragraph 13.

[45]Mr Withington sought to challenge the accuracy of some parts of that evidence, but we now have the benefit of Notes of Evidence from the Chairman, and although there remain some minor disputes, they are plainly not ones which can conceivably be resolved other than in favour of the Chairman's Notes, and we do not intend to go behind those findings of fact which are set out in this paragraph, and they read as follows:

"ii He had great difficulty in remembering names, and sometimes places, for example he goes to the wrong car park for his car and to wrong cupboards in his home. iii He does not feel that he could plan and carry out a course of action such as booking a holiday. iv He cannot easily take in new knowledge, for example, he has read the Disability Discrimination Act again and again and still cannot remember and take it in."

As was commented in the course of the hearing before us, he is not alone in that regard. "v Instructions for tasks to be done by him must be written down or he will not be able to remember them. vi He has slowed down considerably and the days are shorter than they used to be. vii He reads very little, and anything that takes more than 10 to 15 minutes to read is too much for him. viii If there is, for example, a two part thriller on TV he cannot remember the first part to connect it to the second part even if the two parts are shown on consecutive days. ix..He finds it very difficult to walk through or near a crowd of people, and he is particularly fearful of a crowd of young people. He avoids walking through the centre of Hastings for this reason. Going to Rye is something which gives him fear and anxiety because of its association with his former place of work, and on an occasion when he had to go there, he took his son with him."

[46]Mr Withington has submitted to us that all that falls to be set against the clearly successful life that he has found for himself in the Council, including chairing planning meetings, which quite plainly require concentration and diligence and, of course, we have read the evidence which he had recorded by the Chairman as given in that regard, but as I have indicated, those findings of fact cannot be gainsaid on appeal. They, however, fall to be set against the conclusions of Dr Zakrzewski.

[47]We have referred to the entirety of the references in the Tribunal's Decision to the report of Dr Zakrzewski, and it is totally apparent that at no stage does the Tribunal either offset the findings of fact to which we have referred against the Reports of Dr Zakrzewski, and give reasons why the former are to be preferred as overruling the latter, or in any way explain why the latter's Reports are not accepted.

[48]There are, it seems to us, possible reasons for that.(1) As we have earlier indicated, Dr Zakrzewski's reports are only partially referred to in the Tribunal's Decision, and the central utterly crucial part of Dr Zakrzewski's evidence, namely the oral evidence, in which he explains the important part of his conclusions in his Addendum Report, is omitted in its entirety. It may be that the Tribunal would have misunderstood the written report, with the reference to: "Consciousness clear and cognitively intact", but we find it very difficult to see how they could have misunderstood the clear explanation of that passage in evidence by the statement that Consciousness and cognitive functions were intact in other areas." than in relation to discussing school, that examples of the Guidance did not apply and that "consciousness and cognitive functions" included concentration and memory.

(2) Mr Withington has sought to put some gloss on that evidence, and to refer to the potential ambiguity of the reference to the earlier evidence that there was some lowering of functioning in other areas, and significant lowering in school. Even if that passage is taken alone, and at its face value, it is plain that the only significant lowering of function, i.e. the only substantial lowering of function on any real reading, is in the school, which would not be sufficient to amount to finding a substantial effect on day-to-day activities, with only some lowering of function in other areas; but when that passage is further clarified by the clear passage which follows, the conclusion of Dr Zakrzewski must have been obvious to the Tribunal and yet it is omitted.

(3) The evidence of the Applicant upon which the Tribunal relies, apparently to oust, if that was what they were doing to the evidence of Dr Zakrzewski, is flawed by the failure to which we referred at the beginning of this judgment by its not being tied down to any particular time. If the position is that there had to be a decision in relation to the period May/June 2002, it is plain that the evidence of Dr Zakrzewski does refer to that period, and such is common ground. The first Report is 2 July and the second Report, albeit some three months later, expressly found that there had been no change in the meanwhile. But the anecdotal evidence referred to by the Tribunal, none of which featured in the two thorough reports of Dr Zakrzewski, may not relate to the same period. They may perhaps relate to the subsequent period during which his medication is required to be increased. Such is speculation, but what is quite plain is that, even if those factual pieces of evidence do relate to the relevant period, and even if the Tribunal was entitled not only to set them against Dr Zakrzewski's evidence but to use them so as to overrule and oust that evidence, it is our judgment that as a matter of law the Tribunal was not entitled to do so without explaining why.

[49]We do not need to address the well known case of Meek -v- City of Birmingham

[1987] IRLR 250

for the proposition not only that the parties must have understood why they have lost or won, but that the Tribunal must give reasons as to why they reached the conclusions that they do. It is not even plain, as both parties effectively accepted, in argument before us, whether the Tribunal was rejecting the evidence of Dr Zakrzewski.

[50]Mr Sisley has submitted, and indeed one can understand why he did, that they were not rejecting the evidence of Dr Zakrzewski; there is no certainly no sign throughout the Tribunal's Decision of their rejecting or disagreeing with the evidence of Dr Zakrzewski, simply because the only parts of that report which they cite are the ones which support the conclusion they come to, whereas the fundamental parts of his report and his oral evidence which they do not cite indicates clearly that he in fact came to the contrary conclusion.

[51]If, on the other hand, whether they realised it or not, they were, as we believe they plainly were, disagreeing with Dr Zakrzewski's conclusions and were preferring the evidence of the Applicant, then they were required to say so. They were required to say which parts of Dr Zakrzewski's evidence were unacceptable, or why the evidence of Mr Hancock forced them to believe or reject the evidence of Dr Zakrzewski's example whether they concluded that Dr Zakrzewski had erred in some way; had not taken sufficient time in his consideration; had not taken notice if he was in fact told about them, of the matters which they have recorded in paragraph 13 of the Decision, as weighing with them.

[52]There is, however, no sign of any such consideration at all, and we conclude that the Tribunal effectively came to the conclusion they did without considering at all the central evidence of Dr Zakrzewski which ought to have, or might well have, driven them to come to the opposite conclusion so far as 4(1)g is concerned, and we are satisfied that the Tribunal's Decision in that regard, in relation to memory loss and concentration, cannot be supported.

[53]So far as 4(1)(h) is concerned, we have already referred to the somewhat unusual way in which this occurred; not only was this not raised with Dr Zakrzewski nor was in his mind when he made either of his Reports, but it was not raised until Mr Hancock gave some evidence relating to his fear of crowds of young people. The evidence that he gave is recorded in the Chairman's Notes as follows:

"I find it very difficult to walk through crowds particularly of young people. I have a fear of them. I avoid crowds of youngsters. I did have difficulties in getting to Rye - driving to Rye led to fear and anxiety. I was very apprehensive about my personal safety. I took my son with me."

Rye, we understand, was particularly close to the school.

[54]The position then was that Mr Hancock abjured reliance on 4(1)(h), as explained by the Tribunal, but, notwithstanding such abjuring by him, being unrepresented, perfectly properly the Tribunal concluded that they would still consider the point; but it is not surprising in those circumstances that Dr Zakrzewski, who came next after the evidence of Mr Hancock, did not deal with the point at all, and had Mr Hancock been represented, of course his representative would have been obliged to have put points under 4(1)(h) to Dr Zakrzewski so that he could deal with them. Perhaps it is surprising that the Tribunal itself, if it was of a mind to consider 4(1)(h), did not put questions about 4(1)(h) to Dr Zakrzewski. But the position remains that there is nothing in Dr Zakrzewski's report which could support the position of 4(1)(h) or bring matters within C21 of the Guidelines which we have cited. Everything relating to avoiding crowds of youngsters, walking through crowds of young people and travelling to Rye would be consistent with the kind of anxiety which Dr Zakrzewski found the Applicant was suffering from, to a clinically significant level, as part of his mixed anxiety and depressive disorder.

[55]The Tribunal, however, on the basis of that limited evidence, concluded in paragraph 21 as follows. Having set out the fact that it was effectively their idea rather than the Applicant's, the Tribunal continued:

"The example given at paragraph C21 of the Guidance refers to excessive avoidance behaviour without a good cause."

Then the Tribunal recorded the following:

"The Applicant's fear of crowds, especially crowds of young people, prevents him from walking through the centre of Hastings and his work-related fear prevents him from going into Rye on his own"

[56]If that is a conclusion that there was, as a result, a substantial effect on his day-to-day activity, by virtue of an over-estimation of physical danger, including danger to well-being, then, in our judgment, there was no evidence upon which the Tribunal could reach that conclusion; in particular there was no evidence at all that his anxious avoiding of young people rested upon any over-estimation of physical danger or danger to his well being. We are satisfied that, even apart from the problem of lack of identification of the precise time in question, this Tribunal was not entitled, on the evidence that it had, at any rate without explaining why it rejected the evidence of Dr Zakrzewski, to come to the conclusions it did.

[57]We are clear that the appropriate way forward is for there not to be a preliminary issue tried in this case, but that the matter should be remitted to the Employment Tribunal, and we shall hear submissions as to whether it would be the same or a different Employment Tribunal, for all the issues under the Applicant's claim under the Disability Discrimination Act to be tried together. It is plain to us that, particularly now that the Applicant alleges that the acts of discrimination were spread over a period of between September 2001 and, if permitted, through to November 2002, then the question as to whether, during those relevant periods, he was suffering from a disability would best be considered at the same time, rather than by any re-gathering of a Tribunal to hear this question of preliminary issue all over again. It is clear that there will not be an issue, next time round either, as to the existence at the material time, whenever that material time be agreed to be, of the relevant disorder or of its long-term effect, given the conclusion that he was not capable of continuing to teach.

[58]The issues that will have to be decided will be whether, at the material time or times, such disorder led to or had a substantial effect on his day to day activities. That matter will now have to be decided afresh, but it can, in our judgment, sensibly and satisfactorily be decided at the same time as the question as to whether at those very same times, the Respondent treated him unfavourably by virtue of that disability.

[59]In those circumstances it is to be hoped that the unfortunate fact that this will have to be remitted to the Employment Tribunal will not in fact cause a great loss, either of time or of cost, is allowed and the case will be remitted to the Employment Tribunal for a full hearing on disability and we shall hear you both briefly on whether it should be different or the same Tribunal. Our present view is that it should be a different Tribunal.