MR K BUSH v ZURICH FINANCIAL SERVICES [2004] UKEAT 0832_03_1803

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0832_03_1803Case No Appeal No. UKEAT/0832/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR K BUSHAPPELLANTZURICH FINANCIAL SERVICESRESPONDENT
Before
Her Honour Judge Wakefield Ms K Bilgan Mr A E R MannersDate 18 March 2004
[1]APPEARANCES For the Appellant MR J SLATER (Of Counsel) Instructed by: Messrs Pannons & Partners Solicitors 123 Deansgate Manchester M3 2BU For the Respondent MR D McCARTHY (Of Counsel) Instructed by: Messrs TLT Solicitors One Ratcliffe Street Bristol BS99 7JZ HER HONOUR JUDGE WAKEFIELD This is an appeal by Mr Kenton Bush against a decision on a preliminary point by an Employment Tribunal sitting at Bristol at which it was determined that the Appellant was a disabled person within the meaning of Section 1(1) of the Disability Discrimination Act 1995 in the period 23 November 1998 to 15 September 2000 but was not such a person in the subsequent period 16 September 2000 to 10 January 2003.[2]The brief background facts, as set out in much greater detail in the Extended Reasons for the decision of the Employment Tribunal which was sent to the parties on 14 August 2003, are these. The Appellant was employed by the Respondent Zurich Financial Services from 23 November 1998 as a systems analyst. By an Originating Application presented on 16 October 2002 he claimed to have been discriminated against in that as a disabled person within the meaning of the 1995 Act he had been treated less favourably by the Respondent or subjected by them to a detriment by reason of his disability. In the Notice of Appearance the Respondent denied that the Appellant was a disabled person or that any such treatment as alleged had occurred.[3]On 10 January 2003 the Appellant was dismissed by the Respondent. He presented a further Originating Application to the Employment Tribunal claiming unfair dismissal and disability discrimination in connection with the dismissal. The Respondent in the Notice of Appearance denied any disability discrimination and claimed that the dismissal was for redundancy and was fair.[4]Before the Employment Tribunal at the hearing of the preliminary point, the Respondent conceded that the Appellant had been a disabled person from the date of commencement of the employment until 15 September 2000, on which latter date he had been discharged by his specialist consultant from further treatment for what was described as a moderate depressive episode. The Employment Tribunal in the decision made a finding in accordance with that concession.[5]The outstanding issue for the Tribunal to determine was therefore whether the Appellant was a disabled person within the meaning of Section 1(1) of the 1995 Act between the 16 September 2000 and the dismissal on 10 January 2003. The Employment Tribunal heard evidence from the Appellant and was referred amongst other documents to five medical reports from three doctors as well as correspondence from six other doctors and the relevant GP records.[6]Submissions were made by or on behalf of both parties. In paragraphs 7-16 of the Extended Reasons the Employment Tribunal sets out in detail its findings on the facts and the conclusions reached in terms of the law on disability discrimination as applied to those facts. In its paragraph 17 there is a summary of those conclusions in the following terms:
"17. In those circumstances, in summary, the tribunal finds that the effects of the recurrence of the applicant's depressive illness which recurred from some time in late 2001, whilst being long term did not have a substantial adverse effect on the applicant's ability to carry out normal day-to-day activities up to the period 10 January 2003. The tribunal finds that the deduced effects, i.e. the effects without the prescribed Fluoxetine would not be such that they would have a substantial adverse effect on the applicant's day-to-day activities during the same period and the tribunal finds that on the balance of probabilities the substantial adverse effect was not likely to recur, and therefore the substantial adverse effect is not treated as continuing. In those circumstances, and for all the reasons given, we find that whilst the applicant was a person with a disability during the period 23 November 1998 to 15 September 2000, but he was not a person with a disability during the period thereafter. In coming to our conclusions we bear in mind that the material time at which to assess the disability generally, i.e. whether there is an impairment which had a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities is the date of the alleged discriminatory act which in this case relates to the period in dispute, namely 16 September 2000 to 10 anuary 2003."
[7]By an amended Notice of Appeal this decision of the Employment Tribunal is said to be wrong in law on broadly two bases. A third ground of appeal was abandoned in the course of the hearing today. The first such basis is that in the light of the psychiatric report dated 15 May 2003 by Dr Veasey, a jointly instructed expert, taken together with other evidence, it was not open to the Employment Tribunal to find that the Appellant was not a disabled person within the meaning of the Act. We find no merit in this ground of appeal. Whether a person is a disabled person as so defined in the Act is a matter of law based on all the facts including the medical evidence. It is for the Tribunal and not for any medical expert to make a finding taking account of all relevant material. The nature of any illness suffered by an Applicant is one factor but the effects of that illness and whether they are long term, substantial and adverse as regards ability to carry out day-to-day activities are for the Tribunal to determine. This Employment Tribunal in the Extended Reasons set out the correct approach, made its findings of fact based on evidence as presented to it and reached a conclusion which cannot be said to be one which no reasonable Tribunal on a proper appreciation of the evidence and the law could have reached.[8]Turning then to the second ground of appeal, this involves criticism under five heads of the conclusions of the Employment Tribunal as regards various manifestations of the Appellant's illness and the extent to which his day-to-day activities were effected. It is not necessary here to detail these five matters since we have not been persuaded as regard any one of them that the Employment Tribunal fell into error. The Employment Tribunal's findings as to each aspect of the Appellant's alleged difficulties linked to his depressive illness are full and detailed. None is perverse.[10]Whilst we can appreciate the unhappiness of the Appellant at the conclusions reached, the reasoning processes and the application of the law cannot be faulted. This appeal is dismissed.