MR L D WOODHOUSE v BRITANNIC ASSURANCE PLC [2004] UKEAT 0132_03_2901

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0132_03_2901Case No Appeal No. UKEAT/0132/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR L D WOODHOUSEAPPELLANTBRITANNIC ASSURANCE PLCRESPONDENT
Before
Mr Justice Rimer Ms K Bilgan Mr J R CrosbyDate 29 January 2004
[1]APPEARANCES For the Appellant MR P CADNEY (Of Counsel) Instructed by: Messrs Davies & Partners Solicitors 135 Aztec West Almondsbury Bristol BS32 4UB For the Respondent MR P OLDHAM (Of Counsel) Instructed by: Messrs Kent Jones & Done Solicitors Chruchill Road Stoke-On-Trent ST1 3BQ THE HONOURABLE MR JUSTICE RIMER This is an appeal by Mr Lionel Woodhouse against the dismissal by an employment tribunal sitting at Leicester and chaired by Mr D Price of his claim against his former employer Britannic Assurance Plc ("Britannic"), that they had discriminated against him on the grounds of his disability and had breached his contract of employment. The principal complaint he made was that Britannic had dismissed him for a reason directly caused by and related to his disability and so had discriminated against him within the meaning of Section 5(1)(a) of the Disability Discrimination Act 1995 ("the DDA"). The hearing before the tribunal took place over three days in November 2002 followed by a Chambers hearing of the tribunal on 17 January 2003, when it considered its decision. The tribunal's extended reasons were then sent to the parties on 20 January 2003.[2]The appeal is of a relatively unusual type since in essence it amounts to a challenge to the findings of fact made by the tribunal. The substance of Mr Woodhouse's contention as outlined in the skeleton argument of Mr Paul Cadney, who appeared for him both before the tribunal and before us, is that the state of the medical evidence before the tribunal was such that the decision to which it came was one to which it was not entitled to come. He contends that, in arriving at that decision, the tribunal overlooked that very important evidence and so committed an error of law. Mr Cadney confined his oral submissions to us in the course of this morning's argument to a rather narrower challenge to the tribunal's decision, namely that there was a key finding that it should have made, but did not, although we do not understand him to have abandoned any part of the rather wider basis on which he put Mr Woodhouse's case in his full and careful written argument. In addition, Mr Cadney also made oral submissions as to the extent to which we should take account of certain further reasons for its original decision that the tribunal provided following a direction made by this appeal tribunal at the preliminary hearing of this appeal.[3]Having regard to the nature of the appeal we must therefore refer, and in some detail, to the findings the tribunal made as explained in its extended reasons. The tribunal made it plain at the outset that there was no dispute that Mr Woodhouse was at the material time disabled within the meaning of the DDA; and the tribunal found that he suffered from thyrotoxicosis (an overactive thyroid gland) which had the effect of making his hand tremble together with the experiencing of pain in his neck. It acknowledged that if this disability caused Mr Woodhouse to perform poorly, or more poorly than he otherwise would have done, then his dismissal was directly related to his disability. But Britannic's case, which the tribunal ultimately accepted, was that it did not dismiss him for any reason so related.[4]Mr Woodhouse is 60. Since 1987 he had been selling financial products to the public and had built up some expertise in that field. By 1999 he was employed by the Prudential Assurance Company, was at sales manager level and was responsible for a team of about a dozen salesmen. The financial services industry had undergone considerable changes over the previous decade or so which had led to redundancies. Mr Woodhouse was himself made redundant by Prudential in 1999 following which he was offered employment by Britannic in January 2000. Britannic was relatively successful in the industry, but with a view to remaining so had introduced a new technology to facilitate its business operations. It spent some £19m on equipping staff with laptops and training in their use, its plan being that all its future business was to be conducted with a laptop.[5]The tribunal found that all offers of employment (including that to Mr Woodhouse) were subject to candidates passing Britannic's initial training course, ("the Profile course"). This was a 6½ week course focussing on training in Britannic's product range and in developing training skills using IT. Those who successfully completed it became fully conversant in Britannic's Profile software. Britannic had offered Mr Woodhouse a post as sales manager and so subject to passing the Profile course, he was also due to go on to take the further sales manager course which lasted another two weeks. The purpose of that course was to train managers to operate the activity management system within the Profile software. It was crucially important to Britannic that its sales managers could properly use laptops and software so that they could ensure the proper management of those for whom they were responsible.[6]Mr Woodhouse had a problem, however, in that he had no previous experience of computers. He commenced the Profile course on 31 January 2000. During its first week he expressed difficulty in using the fully integrated mouse. He was advised to go to a computer shop and try different types of equipment and he managed to find a mouse that he appeared to be able to use. He was given exercises to improve his keyboards skills. He worked hard on the exercises and practised for up to two hours at a time. The laptop automatically reproduced the fruit of his work and showed that his accuracy increased in proportion to the time he spent on a particular exercise. His performance scores were average and matched those of the other candidates. His accuracy range was within 90-100% in the later stages, showing that he had no problem in striking the right keys.[7]Assessments were made as the course progressed the pass mark for each being 70%. Mr Woodhouse passed the Financial Planning Certificate validation test with 72%, a test designed to ensure that candidates had retained an acceptable level of generic product knowledge. On 22 February 2000, he failed the money laundering test with a score of only 60% but he re-sat this on 25 February and passed. He sat the Savings test on 7 March, one covering fifteen of Britannic's products. He gained passes in five but his scores in the other ten were such as to require him to have to re-sit the whole test.[8]Other tests involved an assessor observing the candidates' technique in meetings with clients. On 8 March, Mr Woodhouse was subjected to an observed exercise by way of a trial run in which he had to conduct such a meeting. It was noted that he did not record details of the transaction and was unable to input information into a letter for which there was no text by way of a precedent. The observed assessments themselves took the form of two role plays and the first was on 13 March. Candidates had 90 minutes in which to complete the assessments but most did so within 75. Mr Woodhouse's assessment had to be terminated after 30 minutes and he was failed. The assessor acknowledged he had good inter-personal skills but he was unable to use the Profile system proficiently. He could not navigate round the screens or correctly input information. This meant he could not move on to the next stage of the exercise, which is why the assessment had to be terminated. Following this, Mr Woodhouse was given four days of one-to-one training and he passed the assessment on his second attempt although he still had difficulty inputting information provided by the client. He still relied on making notes on paper and inputting information on to the computer at a later stage and he was marked as non-proficient in the use of the laptop.[9]Mr Woodhouse's second assessment was on 21 March, several days after the other candidates had completed it. He failed it, being found to be deficient both in laptop use and in other areas. The trainers concluded he had no chance of passing the Profile course, which he had to complete before going on to the more demanding sales managers' course. The latter course placed great emphasis on sales skills through use of the software programmes and sales managers were also expected to train their staff in the use of the Profile software package.[10]Apart from assessing his competence Britannic also considered Mr Woodhouse's health. He was asked to, and did, complete a questionnaire and sent it on 7 February to Medical and Industrial Services Ltd, "(MIS)", which advised Britannic on the health and fitness of prospective employees. In response to one question, he said that he did not suffer from any physical or mental impairment significantly affecting his day-to-day activities. MIS sought a report from Dr Simpson, his GP, and on 11 February Dr Simpson replied that Mr Woodhouse had started to become shaky in November 1999 when a diagnosis of thyrotoxicosis was made. This had been treated by carbimazole (an anti-thyroid hormone drug) and Dr Simpson's opinion was that Mr Woodhouse had responded well. His opinion was that Mr Woodhouse suffered no substantial impairment that adversely affected his ability to carry out normal day-to-day duties.[11]MIS was more cautious about this and advised Britannic on 17 February that Mr Woodhouse might have a pre-disposition to problems affecting his neck with resultant difficulties in the use of his hands. It commented that this could be relevant if he was using a computer for more than an hour or two a day. Dr Walters of MIS thought that, on balance, there was a very good chance that Mr Woodhouse would be fully fit for his proposed appointment but suggested that Britannic should obtain an independent pre-employment medical examination in order to assess the residual problems with the neck and arm function and to advise on the medical conditions which would be covered by the DDA. Britannic made an appointment for Mr Woodhouse to be examined by a Dr Sharma but it was deferred until after Mr Woodhouse had completed the Profile course. In the event Dr Sharma did not examine Mr Woodhouse because in the meantime Britannic had withdrawn its offer of employment.[12]The tribunal found that no medical report was sent to the trainers conducting the Profile course, who knew nothing of Mr Woodhouse's thyroid condition. Nor did Mr Woodhouse suggest to them that his poor performance on the computer was down to any tremble in his hands. He was viewed as having average keyboard dexterity, i.e. no better or worse than other candidates, but the tribunal found that where he did differ from them was in his understanding of a computer and its software. He had shown difficulty in coming to terms with the Profile software. He did not find it easy to format letters or input information at the required point in the programme. The tribunal found that there would have been no evidence to suggest that Mr Woodhouse's poor performance was related to any problem with his hands.[13]The trainers wrote about Mr Woodhouse's performance to Mr Czolak, the divisional manager of the agency to which Mr Woodhouse had been assigned. Mr Czolak arranged to see him on 22 March to discuss the trainers' letter. He told him that as a result of his poor performance, Britannic was going to terminate his employment. His dismissal was confirmed by a letter of 27 March in which Britannic also explained that, although he had been given unprecedented levels of support, the trainers could not foresee a time when his IT skills would be sufficient for him to be able to coach others in his team on the sales process and associated skills using the laptop and Profile software. Before receiving that letter Mr Woodhouse appealed, setting out his grounds of appeal in a letter of 25 March. He made no point in it that he suffered from any difficulties arising from his disability. His appeal was rejected.[14]On those facts the tribunal found that Mr Woodhouse was dismissed for the reasons set out in the letter of 27 March, namely his inability to cope with computers. It found that his hand may have trembled but was not the cause of his poor performance. He was a newcomer to computers and to begin with his dexterity was poor but his skills improved with practice. There was no evidence to show that his problem was with the use of the keyboard. His problem, and the reason for his poor performance, was that he was unable to come to terms with the concept of the use of a computer. The tribunal found, therefore, that the reason for his dismissal was related to his lack of understanding of how a computer and its software function and not to the fact that his hand trembled. It found that his dismissal was not related to his disability.[15]The tribunal then referred to Mr Woodhouse's secondary case that Britannic had failed to make adjustments to cater for his disability and found that this case was not established. There is no appeal against that conclusion. It also rejected a claim for breach of contract which Mr Woodhouse had made, which again is not the subject of any appeal.[16]On this appeal Mr Cadney submitted that, in arriving at the conclusion they did, the tribunal failed to pay proper regard to a material part of the medical evidence to which their extended reasons made no reference. The reasons referred only briefly to the neck pain and focussed on only one symptom of Mr Woodhouse's thyrotoxicosis, namely the hand tremble. It is said that the tribunal appear to have regarded the tremble as a discrete symptom rather than as part of a cluster of symptoms and that they failed also to consider the effect of other symptoms of thyrotoxicosis on Mr Woodhouse's ability to concentrate and carry out complex mental tasks.[17]Central to this argument is that in evidence before the tribunal were the opinions of two doctors who had been jointly instructed by the parties. Neither attended the hearing for cross-examination and their evidence was therefore in the nature of unchallenged expert evidence. Dr McNally is a consultant in general medicine, diabetes and endocrinology. His report dated 25 January 2002 contains the opinion that:
"In terms of this gentleman's employment there is little doubt that thyrotoxicosis would have compromised his ability to function normally. Not only would manual skills and dexterity be impaired due to a marked tremor, but also the excess hormones would have affected his ability to concentrate, made him more irritable, unable to carry out complex mental tasks as well as being associated with generalised lethargy and exhaustion."
In relation to ability to use a computer Dr McNally said that Mr Woodhouse's '… ability to comprehend and undertake complex tasks would have been affected due to the associated poor concentration, lethargy and physical exhaustion'. Dr McNally summarised his opinion by saying that:
"There is little doubt that [Mr Woodhouse] developed a significant medical disorder, thyrotoxicosis, which would have had a major impact upon his ability to function in the workplace between January and March 2000."
[18]Dr Samanta is a consultant rheumatologist. His report, dated 23 January 2002, includes the opinion that:
"Mr Woodhouse's condition would impair his ability to sit at a desk or a computer for prolonged periods at a time and he would also have difficulty with prolonged keyboard work. On the balance of probability, it is likely that such work would lead to pain and discomfort in the neck, around the shoulder blade and in the hands and arms after a period of time. The usual period of time before such symptoms develop is one hour, or thereabouts."
[19]Mr Cadney emphasised in his skeleton argument that these opinions were expressed in positive terms as to what would have been the effect of thyrotoxicosis, not as to what might have been its effect, although they were not of course expressed in terms to the effect that thyrotoxicosis did in fact have any relevant effect on Mr Woodhouse's performance during the Profile test. Neither doctor could have given evidence to that effect because they did not witness Mr Woodhouse's performance. Mr Cadney said that it is not disputed that Mr Woodhouse was disabled and that he was dismissed because of his poor performance on the Profile course. He submitted further if that poor performance was caused by his disability, or if it caused him to perform more poorly than he otherwise would, then, contrary to the findings of the tribunal, the dismissal was directly related to his disability. Mr Cadney said that what the tribunal should have done was(1) to identify the symptoms and consequences of the disability,(2) make findings as to the reasons for Mr Woodhouse's poor performance, and(3) make findings, or draw an inference, as to any causal link between the two.[20]As regards the first point Mr Cadney said that the tribunal's extended reasons disclose no sufficient consideration of it. They refer to the tremble more than once but only once, to the neck pain and not to the other symptoms of Mr Woodhouse's disability. We comment that the tribunal's emphasis on the tremble does not surprise us at all because this is the point of which Mr Woodhouse himself made most in his witness statement, in which he referred to his tremble five times. He made only one reference to any difficulty with concentration, saying in paragraph 10:
"I could not sleep because of the pain and this caused my concentration to suffer."
[21]Mr Cadney also said, correctly, that the extended reasons make no reference to the opinions of Dr McNally or Dr Samanta. As a result of the last omission this appeal tribunal, at the preliminary hearing, directed certain questions to be asked of the tribunal by way of clarification of the extent to which it had or had not had regard to the unmentioned medical evidence. The response was a full one and explained that the tribunal had taken into account the reports of both doctors McNally and Samanta. The tribunal pointed out, however, that those doctors had not examined Mr Woodhouse until 7 November 2001, some 18 months after the events at Britannic, and said that the doctors therefore had to rely on Mr Woodhouse's account of his symptoms at the time. They said that the doctors were able to comment on the effect such symptoms 'might have had' (although we comment that that is not in fact quite what the doctors said) on Mr Woodhouse's ability to complete the computer course successfully and the tribunal said they considered the doctors' comments. But they said that they also had other evidence, namely that of the witnesses who had observed Mr Woodhouse's performance and the results of the tests as to his keyboard abilities, the latter being completely objective tests produced automatically by the computer. The tribunal said they did not consider any of the symptoms and consequences of the disabilities as set out in the expert reports to constitute a material contributory factor in Mr Woodhouse's inability to come to terms with the concept of a computer. They re-endorsed their findings in their extended reasons that Mr Woodhouse was able to cope with the physical operation of the computer. They said that the course did not require him to work at a computer all day. Other aspects of the job were covered and the tribunal was not satisfied that his performance showed that he lacked the inability to concentrate or carry out complex mental tasks. They pointed out that he did well in certain aspects of the course where concentration was essential. They pointed out that the computer recorded that he practised keyboard skills for up to two hours at a time, which would have entailed a considerable amount of concentration. They explained that where he did experience difficulty was, for example, in navigating between screens and inputting information. He could do the task on paper but could not get used to doing it on the computer. They said that this was not as a result of his disability, as he had demonstrate that he could use the keyboard with accuracy and was able to concentrate on the tasks in hand. They repeated that his failure to reach the required standard was more down to his lack of familiarity with the use of computers and the way they operated. He could not bring himself up to the necessary standard in time. They said that:
"This may have been down to his age, his general abilities or because of the person he is. It was not as a result of any disability."
[22]The tribunal also explained that they had accepted the evidence of David Piper and had taken it into account. He works for the National Probation Service, by which Mr Woodhouse became employed in May 2001. Mr Piper explained in his evidence that it was part of Mr Woodhouse's daily routine to use a computer, that he had been trained in its use and had consistently performed all the functions required of him in relation to its use to the standards required. Mr Piper referred to the type of work Mr Woodhouse had to do and said that they: "… demonstrate his ability to absorb detailed information and procedural guidance, to work effectively with other people and to adapt to new situations with confidence".[23]Mr Cadney accepted that it was open to the tribunal to find, as they did, that the hand trembling was not a cause of Mr Woodhouse's poor performance but he said that the tribunal failed to consider the hand trembling as part of a cluster of symptoms occasioned by the thyrotoxicosis. He criticised the tribunal's conclusion that Mr Woodhouse's poor performance was simply attributable that his lack of familiarity with computers and the way they operate and submitted that the medical evidence showed that the heart of the difficulty was that his disability generated symptoms which affected his ability to concentrate, to carry out complex mental tasks, and rendered him liable to lethargy and exhaustion. He said Mr Woodhouse had an extensive background in the financial services industry in general and was very familiar with the type of work he had to do. His primary difficulty in coping with the Profile course was that he was unfamiliar with computers. Mr Cadney submitted that the tribunal's finding that he was unable to come to terms with the concept of the use of a computer was in fact a finding that he was unable to carry out a complex mental task in sufficient time, being one which was affected by the symptoms of his disability. He said that the only way in which a conclusion to this effect could have been avoided would be by rejecting the expert medical evidence by doctors McNally and Samanta, which he said was effectively what the tribunal must have done. He also said, and this was the primary point he emphasised in his oral argument to us this morning, that the tribunal erroneously failed to make a positive finding as to whether Mr Woodhouse was not suffering at the relevant time from the symptoms of his thyrotoxicosis or whether he was suffering from them but that they did not affect his performance on the course.[24]In our view, and with respect to the very careful argument which Mr Cadney has put before us both in written and oral form, these arguments are unsustainable. First, the further explanations from the tribunal in response to this appeal tribunal's directions show that the tribunal did not overlook the expert medical evidence but gave consideration to it. Contrary to the stance preferred by Mr Woodhouse and his advisers, that evidence, even though unchallenged was not by itself conclusive as to the answer to the factual issues the tribunal had to decide. It was no more than the considered opinions of two doctors some 18 months after the relevant events as to the effect that certain symptoms "would have had" on Mr Woodhouse's performance. The chosen tense is one typically favoured by experts who are expressing opinions after the event about facts of which they have no personal knowledge. Their evidence was not, and could not be, that Mr Woodhouse's disability did in fact impair his performance, and the tribunal's task was to make findings as to that in the light of all the evidence it had. That evidence included evidence from witnesses who observed Mr Woodhouse's actual performance at the time. The essence of the tribunal's findings was that Mr Woodhouse demonstrated the physical dexterity necessary for the efficient operation of a computer's keyboard, that he displayed a good level of inter-personal skills appropriate for the proposed position, and we infer that he also demonstrated the necessary knowledge of the relevant financial products. In short, he demonstrated that he had the intellectual and personal skills required for the type of post he was seeking and, to the extent that it was necessary to demonstrate a sufficient level of physical dexterity in the operation of a computer keyboard, he fairly quickly - and from scratch - developed and demonstrated the necessary skills. But a key skill also required, which he could not develop or demonstrate, was a skill in the operation of the Profile software. The tribunal's finding was that this was not referable to any symptoms of his thyrotoxicosis. It was simply because he did not have, and was regarded as unlikely to be able to develop, the necessary skill.[25]In our view, therefore, the tribunal did give a sufficient answer to the question which Mr Cadney complains they did not address themselves to, although admittedly they did not deal with it quite in the terms which he said they should. As the tribunal explained in response to the further enquiry of it, Mr Woodhouse's inability to reach the required standard on the course was not attributable to any inability to use the keyboard or any inability to concentrate on the task in hand. It was "more down to his lack of familiarity with the use of computers and the way they operated" and we have earlier referred to what they have said about that. In short, the reason for his poor performance was not as a result of any disability. In our judgment that was a finding that the tribunal was entitled to make despite the opinions of the two medical experts. Their evidence did not by itself trump all other evidence. It was merely part of the evidence of which the tribunal had to take account. The medical evidence, on one view, was anyway questionable. For example, Dr McNally opined that Mr Woodhouse's thyrotoxicosis would have impaired his manual skills and dexterity. But that opinion appears to be contrary to other evidence. He said that his excess hormones would have affected his ability to concentrate or carry out complex mental tasks. But the suggestion that Mr Woodhouse was unable to carry out "complex mental tasks" also seems to be contrary to the other evidence. There does not appear to have been any question of his ability to cope with such tasks. The one material difficulty he did have was coping with what might perhaps be summarised as the intellectual challenge posed by computers. That sort of deficiency was not unique to Mr Woodhouse and is suffered by many people particularly those of more advanced years, who do not also have the misfortune to suffer from thyrotoxicosis. To the extent that Dr McNally opined that Mr Woodhouse's abilities would have been affected by poor concentration, it is also worth observing that that is not a matter of which Mr Woodhouse made any mention in his amended origination application and it is one to which his witness statement made only the tangential reference in paragraph 10 to which we have referred.[26]Mr Cadney also made the submission, although with an understandable degree of diffidence, that this tribunal should view with caution the further reasons provided by the employment tribunal in response to the direction of this appeal tribunal. The essence of his point was that there was at least a risk that a party to the litigation might have a real concern that, in responding to such a direction, the employment tribunal might be at least unconsciously motivated by a wish to support their original decision. We do not accept that there was anything in this point. The practice of inviting trial judges to provide further reasons for their decisions has been approved by the Court of Appeal in English v Emery Reingold & Strick Ltd [2000], 1WLR 2409, at paragraph 25. The like practice has also now been approved by this appeal tribunal as a convenient and fair way in which to deal with appeals to it from employment tribunals. We do not consider that a fair minded observer would or should regard the practice as other than a sound one.[27]As we observed at the outset, this is in effect an appeal on fact, being founded on the proposition that no reasonable tribunal could have made the findings of fact that this tribunal did make. We do not accept that Mr Woodhouse comes even close to making good that case. We are satisfied that the tribunal was entitled, despite the expert medical evidence, to make the findings and reached the conclusion it did. We therefore dismiss Mr Woodhouse's appeal.