MR J J SIMMS v THE LONDON BOROUGH OF NEWHAM [2004] UKEAT 0767_03_1706

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0767_03_1706Case No Appeal No. UKEAT/0767/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J J SIMMSAPPELLANTTHE LONDON BOROUGH OF NEWHAMRESPONDENT
Before
His Honour Judge Birtles Mr A E R Manners Miss G MillsDate 17 June 2004
[1]APPEARANCES For the Appellant MISS N BRAGANZA (of Counsel) Instructed by: Messrs Hereward & Foster Solicitors 101 Barking Road Canning Town London E16 4HQ For the Respondent MISS J BROWN (of Counsel) Instructed by: London Borough of Newham Legal Services Newham Town Hall East Ham London E6 2RP SUMMARY This appeal involves alleged errors by the Employment Tribunal in its finding that the Appellant was disabled under section 1 of the DDA 1995 in respect of his ability to perform normal day-to-day activities as defined by section 4(1) of DDA . EAT hold no error of law, thus entitled to reach its conclusion on the facts. HIS HONOUR JUDGE BIRTLES This is an appeal from the Decision of an Employment Tribunal sitting at London Central on 8 and 9 July 2003. The Decision was sent to the parties and entered in the register on 5 August 2003. The Chairman was Mr G Solomons and the members were Mrs M J Wood and Ms M V Scorer. The Tribunal decided first that the Applicant was not a disabled person within the terms of section 1 and schedule 1 of the Disability Discrimination Act 1995 and his complaint of disability discrimination failed and second that the Applicant's complaint of unfair dismissal was dismissed on withdrawal by the Applicant. We are only concerned with the first decision of the Tribunal.[2]The material facts are set out in paragraphs 4 - 9 of the Decision, "4. The Applicant commenced employment with the Respondent as an electrician in 1972. His employment continued up until 31 January 2002 when he was dismissed by the Respondent. Unfortunately for the Applicant his wife had died at an early age and he laudably brought up his two children alone for many years. His son married and left home in the mid-1990s. His daughter remained living with him until about December 2001, at which point the Applicant was left living alone. It is clear that his wife's death and his relative isolation was a matter which understandably hit the Applicant hard. 5 He contends that the Respondent's Head of Operational Services, Mr Quinn, during 2000 pursued a campaign of bullying and harassment against him with the result that the Applicant became ill. The Tribunal has not had to consider the causation of the Applicant's illness because it is not relevant to the preliminary question which the Tribunal is considering. 6 The Applicant took some time off work in the autumn of 2000 but returned to work shortly thereafter. At this time the Respondent was restructuring its repairs and maintenance division, in which the Applicant worked, and his post of electrical supervisor had been deleted in the restructure but he had applied for a post of maintenance controller. He was interviewed for that post on 8 December 2000 but on 13 December was informed that he had been unsuccessful in that application. He was offered instead a post of Assistant Maintenance Controller with a protected salary under the restructuring process. The following day, 14 December, the Applicant went off sick and he remained on sick leave from the Respondent until the time of his dismissal at the end of January 2002. During that time he submitted sick certificates and he was paid his salary under the relevant contractual provision. 7 The report of Dr Birmingham makes clear that, based upon his examination of the Applicant and his consideration of the relevant medical records, from October 2000 until the time of his examination in June 2003 the Applicant was suffering from a depressive episode, International Classification of Diseases Number 10 Code F32 the symptoms of which include low mood, disturbed sleep, diminished appetite and loss of enjoyment. Dr Birmingham classified the severity of the condition as border line mild to moderate. In his opinion Mr Simms had been suffering from a depressive episode since October 2000 and it was likely to continue until these proceedings had been brought to a conclusion and probably for some months thereafter. During that period of time the Applicant has been receiving anti-depressant medication although it was noted that the Applicant, contrary to the medical advice received, was taking substantially in excess of the recommended dose. Dr Birmingham's view was that "from the point of view of day-to-day living I would expect Mr Simms to have some problems with concentration in the work place, and also have difficulties sustaining activity over a reasonable period." 8 The Applicant's account of the effect of his condition upon his day-to-day living is summarised in paragraphs 58 to 60 of his witness statement, in which he indicates that his depression had affected him in the period leading up to his dismissal in that he had "low self esteem, low motivation and lack of self confidence. On occasions I felt unable to carry out simple tasks around the house, for example, using a vacuum cleaner, cooking a meal or doing other household jobs like cleaning windows." He also found it difficult to concentrate on, for example, reading newspapers or watching television .and there were periods of time when he sat in an armchair for hours doing nothing. On occasions he found it difficult to go out save to shop for food and did not get the pleasure from things like watching sport which he used to. 9 In the course of questioning by the Tribunal the Applicant confirmed that his difficulties in carrying out tasks of one sort or another on occasions, as he puts it in his witness statement, were in essence motivational problems which led him to put off doing things rather than him finding it impossible to do those things on a permanent basis for either physical or other reasons. It became clear to the Tribunal from the evidence that we heard that the Applicant was a man who felt a considerable amount of demotivation in consequence of his condition and as a result was content to let things slip rather than keep up with jobs around the home and with the ordinary requirements of everyday life, so that he would put those matters off and do them when he felt like it rather than when they perhaps needed doing. As he put it in answer to the Tribunal's question:
"I knew they needed doing but there was no point because I was the only one who was going to see"
. He was referring, in particular, to the period after his daughter left home when he was living alone."[3]The Tribunal's conclusions are set out at paragraphs 14 - 18 of its Decision:
"14 When the Respondent was considering and dealing with a grievance lodged by the Applicant against Mr Quinn it is clear that the Applicant was able to, without assistance, communicate with the Respondent in detail in writing on several occasions, appear at grievance hearings and make representations on his own behalf, consider the Respondent's grievance report and then write in detail setting out his own criticisms of that report and his concerns about the procedure being adopted by the Respondent. That correspondence shows clearly to the Tribunal that in terms of dealing with matters in writing in some detail and over a protracted period of time the Applicant was able without too much difficulty to attend to his affairs in that way. 15 Equally, it is clear to the Tribunal on the evidence that we have heard that there was no activity which the Applicant could not do in terms of day-to-day activities and no activity which he did not carry out albeit that on occasion he would delay in doing so as a result of motivational difficulties on his part caused by his mild to moderate depressive episode. The Applicant, in our view upon the evidence we have heard, was able to perform many everyday activities and to sustain those activities over a reasonable period of time on occasions when he felt able to do so. Equally there were occasions when he lacked the motivation to do so. However it does not appear to the Tribunal, on the evidence before us, that he was in a position whereby he was constantly over a lengthy period of time unable to sustain these activities at all. 16 At the end of the day we have to determine whether or not the effect of the mental impairment, which it is conceded the Applicant was and is suffering from, has had a substantial adverse effect on his ability to carry out normal day-to-day activities. It has clearly had an effect. On occasions that effect is sometimes greater, sometimes lesser; but we do not consider that in general terms it can truly be said that the impairment has had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. The evidence in the Applicant's witness statement as to the effects which his condition has is put in general terms. It did not include any evidence of specific examples at specific times in the form of diary entries or alternatively short descriptions of particular dates which one might have expected if his condition had the substantial adverse effect required by statute. 17 Furthermore the evidence of Dr Birmingham puts the matter in this way: "that he would expect Mr Simms, from the point of view of day-to-day living, to have some problems with concentration in the workplace and also have difficulties sustaining activity (presumably in the workplace) over a reasonable period."
There is very little in the report of Dr Birmingham which appears to support the contention of the Applicant that his condition has substantial and long term adverse effects on his ability to carry out normal day-to-day activities. We have of course borne in mind, as we were asked to do, the appearance of the Applicant when giving evidence to this Tribunal. It is fair to say that he appears to be a subdued and depressed man, but we have not had the opportunity to observe the Applicant in his pursuit of day-to-day activities. 18 On the evidence before us we are not satisfied that he has discharged the burden of proof which lies upon him to establish that his mental impairment has a sufficiently substantial affect on his ability to carry out normal day-to-day activities so as to bring him within the definition of a disabled person within section 1 and schedule 1 of the Act. In those circumstances his complaint of disability discrimination must fail." The Decision in respect of disability is challenged by an amended Notice of Appeal which has been supplemented by a Skeleton Argument and oral submissions made by Ms Nicola Braganza for the Appellant, Mr Simms. The Respondent was represented by Ms Jillian Brown. We are grateful to both Counsel for their very cogent submissions.[4]Before turning to the specific grounds of appeal, it is helpful to refer to the relevant statutory provisions, because disability has a precise legal meaning. Subsection 1 of the Disability Discrimination Act 1995 says this:
"1 (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. (2) In this Act "disabled person" means a person who has a disability."
Schedule 1, paragraph 1 defines "Mental Impairment". There is no dispute in this case that Mr Simms unfortunately had a mental impairment, namely depression. Paragraph 2 of Schedule 1 defines long term effects: a long term effect is one which has lasted at least 12 months, that is not in issue in this case. Normal day-to-day activities are defined in paragraph 4 of Schedule 1 in the following way:
"4. (1) 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"
There is then a list of the relevant factors. The relevant factor in this case is (g) "Memory or ability to concentrate to learn or understand" Paragraph 5 of Schedule 1 of the Act deals with substantial adverse effects and refers, as does section 3 of the Act, to Guidance and Regulations to be issued subsequently by the Secretary of State.[5]The Guidance is extensive. We have been referred in particular to paragraphs A1, A2, C1, C2, C3, C4, C7 and C20 of the Guidance. We are entitled to take account in reaching our decision today, of the fact that all Employment Tribunals in this country are issued with copies of Butterworths Employment Law Handbook that is currently in its 12 th edition. That volume contains the Statute, the Regulations and the Guidance. Indeed, in this case there is no dispute that the Employment Tribunal were referred to the relevant law, and it is indeed set out in succinct form in paragraphs 10 - 13 of the Decision. In particular there is reference to the statutory provisions I have referred to, to the Guidance and in paragraph 13 to paragraphs C7, C9 and C20. Ms Braganza does not quarrel with the analysis of the law as set out by the Employment Tribunal in paragraphs 10 - 13 of its Decision.[6]There are, in the Amended Notice of Appeal, four grounds of appeal. We will take them in the order in which they were argued before us. Ground 1[7]Ground 1 refers to paragraph 14 of the Employment Tribunal Decision . That comes in the "Conclusions" part of the Decision; it says this:
"14 When the Respondent was considering and dealing with a grievance lodged by the Applicant against Mr Quinn it is clear that the Applicant was able to, without assistance, communicate with the Respondent in detail in writing on several occasions, appear at grievance hearings and make representations on his own behalf, consider the Respondent's grievance report and then write in detail setting out his own criticisms of that report and his concerns about the procedure being adopted by the Respondent. That correspondence shows clearly to the Tribunal that in terms of dealing with matters in writing in some detail and over a protracted period of time the Applicant was able without too much difficulty to attend to his affairs in that way."
The Tribunal had before it some two lever arch files of documents, including the correspondence referred to, and it heard evidence from Mr Simms. Mr Simms' witness statement is part of the Employment Appeal Tribunal bundle.[8]The ground of appeal is set out in paragraphs 15 - 17 of the Amended Notice of Appeal. It forms two parts: first paragraph 15:
" 15 At paragraph 14 the tribunal found on the basis that A was able to "attend his affairs" in presenting a grievance to the Respondent, the effect could not have been a substantial one."
The first ground of appeal here is this at paragraph 16:
"16 The tribunal misdirected itself having regard to the presentation and pursuit of a grievance, which is not a normal day-to-day activity in accordance with the Guidance."
In our judgment, while it is technically correct to say that the presentation of a grievance is not a normal day-to-day activity, that is not the way the Employment Tribunal clearly approached it in paragraph 14. What the Tribunal did was to break down the bringing of the grievance and its conduct into a number of constituent parts which were normal day-to-day activities. That is clear from paragraph 14 which I have read. In our judgment, there was no error of law here.[9]The second way in which paragraph 14 is criticised is contained in paragraph 17 of the Amended Notice of Appeal, which says this:
"Further, the Employment Tribunal failed entirely to consider the evidence that (a) The Appellant was significantly assisted with his grievance by his union representative, Mr Leaver - known to the Employment Tribunal. (b) The Employment Tribunal also failed to make any findings on the evidence before it of the Appellant having spent lengthy periods of time trying to write several drafts of the same letters and a particular letter written in near identical terms twice (one undated the other dated 9 July 2001 at pages 90-93 of the trial bundle) by the Appellant, though he could not remember the reason for this, and on which he was questioned by his representative in order to bring out the point."
[10]We will deal with (a) first. It is quite clear, as the Amended Notice of Appeal says, that the Employment Tribunal were aware that at some stages of his grievance procedure the Appellant was assisted by a trade union representative; that is quite clear from his witness statement. The Tribunal is not required as a matter of law to make findings of fact on every piece of evidence which is presented to it. It clearly had that material in front of it and there is no reason to believe that it did not take it into account in forming its conclusion that Mr Simms did conduct some, at least, of his grievance procedure himself and, of course, even with a trade union representative, Mr Simms would have needed to have communicated his case to that trade union representative in order for him to be properly represented.[11]Point (b) is in relation to the Tribunal failing to make any finding in respect of correspondence written by Mr Simms. In our judgment, the same principle applies. The Tribunal heard the evidence; it clearly on this particular aspect of it did not give it the weight which the Appellant desires. The weight of evidence is a matter for the Tribunal. Again, it is not required to make findings of fact in relation to every piece of evidence which it hears. There is nothing in the Decision which leads us to believe that this Tribunal did not consider the Appellant's evidence in respect of letter writing. Ground 2[12]This relates to paragraph 15 of the Employment Tribunal's Decision. It says this: 15 Equally, it is clear to the Tribunal on the evidence that we have heard that there was no activity which the Applicant could not do in terms of day-to-day activities and no activity which he did not carry out albeit that on occasion he would delay in doing so as a result of motivational difficulties on his part caused by his mild to moderate depressive episode. The Applicant, in our view upon the evidence we have heard, was able to perform many everyday activities and to sustain those activities over a reasonable period of time on occasions when he felt able to do so. Equally there were occasions when he lacked the motivation to do so. However it does not appear to the Tribunal, on the evidence before us, that he was in a position whereby he was constantly over a lengthy period of time unable to sustain these activities at all.[13]The Amended Notice of Appeal criticises that passage in two respects, as set out in paragraphs 18 and 19 of the Notice of Appeal which say this:
"18 The Tribunal misdirected itself in law in applying too high a threshold to the Applicant. The tribunal at paragraph 15 reasoned that the effect was not substantial because in the tribunal's words, the appellant was not unable to sustain an activity " constantly over a lengthy period of time" and could not be said to be "unable to sustain these activities at all". 19 Further, the tribunal misdirected itself on the focus of the Act, which is to avoid a tribunal concluding that there are things that an Applicant can do rather than what an Applicant cannot do or does with difficulty, Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19 . The tribunal focused on what the Appellant could do (in terms of presenting a grievance) and heavily on what the Appellant could not do (finding that there were no activity he could not do at all) rather than also focusing on the extent of the difficulty with which he was able to eventually apply himself to every day household task."
[14]On the first point, in our judgment, there is no error of law. It is clear at the end of paragraph 15 the Tribunal did use the words "complained of" which I read. However, it is important to look at the context in which those words were used. They follow the Tribunal's summary of the law in paragraphs 10 - 13 of its Decision. No criticism is or could be made of that summary of the law. Paragraph 10 sets out precisely what is the test under section 1 of the Disability Discrimination Act 1995 . That precedes paragraph 15. Second, that paragraph is followed by paragraphs 16 - 18 of the Decision which accurately paraphrases the statutory provision in section 1(1) of the 1996 Act. In our judgment what the Tribunal is doing at the end of paragraph 15 is no more than putting into slightly different language the statutory wording. There is no evidence from the rest of its decision that at this point, properly directing itself on the law, it went wrong.[15]The second part of Ground 2 relates to the complaint that the Tribunal focused on things that Mr Simms could do, rather than on what he could not do, or did with difficulty. There is no doubt about the principle of Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19 , and we do not seek to depart from it. But a clear reading of paragraph 15 tells us that the Tribunal were concluding three quite separate things. First, that this Appellant could actually carry out all his normal day to day activities. Second, that he actually did carry out all or many of his normal day to day activities. Third, when he did not carry out a specific normal day to day activity that was not because of his disability but because he did not feel inclined to do so at that particular time. Indeed, paragraph C20 of the Guidance is specifically referred to in paragraph 13 of the Employment Tribunal Decision. There was no misapplication of that to the fact of this case here. Ground 3[16]This relates to paragraph 16 of the Employment Tribunal Decision. It says this: 16 At the end of the day we have to determine whether or not the effect of the mental impairment, which it is conceded the Applicant was and is suffering from, has had a substantial adverse effect on his ability to carry out normal day-to-day activities. It has clearly had an effect. On occasions that effect is sometimes greater, sometimes lesser; but we do not consider that in general terms it can truly be said that the impairment has had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. The evidence in the Applicant's witness statement as to the effects which his condition has is put in general terms. It did not include any evidence of specific examples at specific times in the form of diary entries or alternatively short descriptions of particular dates which one might have expected if his condition had the substantial adverse effect required by statute.[17]The ground of appeal is here contained in paragraph 20 of the Amended Notice of Appeal. It says this:
"At paragraph 16 the Employment Tribunal concluded that whilst the disability affected A it was not substantial because his evidence was in general terms. In so doing, it failed to take account of the nature of A's impairment, namely depression, unlikely to manifest itself in detailed documentary reference. More significantly, the Employment Tribunal wrongly placed reliance on the absence of "specific examples at specific times in the form of diary entries"
. This reveals a misunderstanding of the nature of the Appellant's symptoms. Further, it is a misdirection in law, a wholly irrelevant consideration, which imposes on the Appellant an unduly onerous standard of proof, unsupported in the Act or Guidance." In our judgment, this ground of appeal is misconceived. The Employment Tribunal heard the evidence of Dr Birmingham, which was presented in the form of a written report, and the evidence of the Appellant. That was the sole evidence put before it by the Appellant in support of his claim that he was disabled within the meaning of the 1996 Act. Having read that report, and heard the Appellant give evidence, we find it inconceivable that the Tribunal did not have regard to the effect that this Appellant's depression had on him.[18]The Employment Tribunal, at the end of the day, has to sit back and apply the facts that it has found to the statutory definition of disability. That is inevitably going to be a value judgment, based upon the evidence it has heard. The Employment Tribunal is entitled to take account of the fact that in this particular case, there was an absence of specific dates or events which would have supported the Appellant's case that he was unable to carry out normal day to day activities; indeed, the passage which Ms Braganza complains of is preceded by the passage that I have read, the sentence which says:
"The evidence in the Applicant's witness statement as to the effects which his condition has is put in general terms."
Since it was only the Appellant's witness statement and his oral evidence which was before the Tribunal, together with the written report of Dr Birmingham, we can see no error of law in the Employment Tribunal finding that that evidence was insufficient for Mr Simms to cross the hurdle of proving, on the balance of probabilities, that he was disabled within the meaning of the Act. Ground 4[19]This relates to paragraph 17 of the Employment Tribunal Decision which says this:
"Furthermore the evidence of Dr Birmingham puts the matter in this way: "that he would expect Mr Simms, from the point of view of day-to-day living, to have some problems with concentration in the workplace and also have difficulties sustaining activity (presumably in the workplace) over a reasonable period."
The Employment Tribunal carries on: There is very little in the report of Dr Birmingham which appears to support the contention of the Applicant that his condition has substantial and long term adverse effects on his ability to carry out normal day-to-day activities. We have of course borne in mind, as we were asked to do, the appearance of the Applicant when giving evidence to this Tribunal. It is fair to say that he appears to be a subdued and depressed man, but we have not had the opportunity to observe the Applicant in his pursuit of day-to-day activities. The ground of appeal is contained in paragraph 21 of the Amended Notice of Appeal, and it says this:
"At paragraph 17 the tribunal misapplied the expert evidence by wrongly inserting the words "(presumably in the workplace") into Dr Birmingham's report. Apart from these words not appearing, after referring to the "workplace" in the first part of that sentence, Dr Birmingham inserted a comma to refer to day-to-day activities, indicative of this part of his opinion not being limited to the workplace alone but day-to-day activities generally."
The words "presumably in the workplace" have been inserted by the Employment Tribunal in Dr Birmingham's report. That is quite clear from looking at paragraph 17 of the Tribunal's Decision and Dr Birmingham's report itself.[20]One of the perhaps unfortunate features of this case is the fact that Dr Birmingham did not give evidence, or was not asked to supplement his report. However, he was not, and so the only evidence from Dr Birmingham before the Tribunal was the written report itself. They had to read that report and try to understand it. The fact that they read the relevant passage as meaning that Dr Birmingham was referring to difficulties sustaining activity in the workplace, as opposed to difficulties sustaining activity generally, is a mistake which in law this Tribunal as the fact-finding tribunal is entitled to make. If authority is needed for that proposition, it is found in the well known case of British Telecommunications Ltd -v- Sheridan [1990] IRLR 27 . A misunderstanding of the evidence is not an error of law and this Tribunal has no jurisdiction to interfere.[21]For those reasons this appeal is dismissed.