MR ROBERT WHYTE v FIRST CAPITAL EAST LIMITED [2005] UKEAT 0686_04_2203

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0686_04_2203Case No Appeal No. UKEAT/0686/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR ROBERT WHYTEAPPELLANTFIRST CAPITAL EAST LIMITEDRESPONDENT
Before
His Honour Judge McMullenDate 22 March 2005
[1]APPEARANCES For the Appellant MISS NICOLA BRAGANZA (of Counsel) Instructed by: Messrs Hereward Foster Solicitors 101 Barking Road Canning Town London E16 4HQ For the Respondent MR IRVINE MACCABE (of Counsel) Instructed by: Messrs Moorhead James Solicitors Kildare House 3 Dorset Rise London EC4Y 8EN SUMMARY Disability Discrimination / Practice and Procedure By a majority decision, new evidence was admitted on appeal. ET did not err when it focused on and found at a preliminary hearing on disability no physical impairment pursuant to Directions given at a directions hearing and concluded in any event, there was no evidence of a mental impairment within the meaning of the DDA. Morgan v Staffordshire University [2002] IRLR 190 and McNicol v Balfour Beatty Rail Maintenance Ltd [2002] IRLR 710 CA applied. The Tribunal did not err when it held as a matter of fact that lesions on the back of the Claimant's head and backside were not a "severe disfigurement". Nor did it err when it found that the effect on the Claimant's mobility and his day-to-day activities was not "substantial" which was a question of fact. Directions given for unfair dismissal hearing. HIS HONOUR JUDGE McMULLEN QC This case concerns a finding by a Tribunal on a preliminary point that the Claimant was not disabled. It also involves a discussion of Employment Appeal Tribunal procedure in handling interim applications. Because other proceedings are under way for unfair dismissal, we announced our judgment at the hearing and now give our reasons. The judgment on the interim application is by a majority and the remainder represents the views of all three of us. We will refer to the parties as Claimant and Respondent. Introduction[2]It is an appeal by the Claimant in those proceedings against a judgment of an Employment Tribunal sitting at London (Central) Chairman Mr J M Edge registered with Extended Reasons on 29 July 2004. The Claimant represented himself and the Respondent was represented by Counsel. We have been asked to pay careful attention to the submission that there was thereby inequality of arms at the hearing. The hearing was conducted pursuant to orders given at a Directions hearing conducted by a Chairman Mr G Solomons on 21 April 2004 who specifically noted in his own reasons the nature of the representation. The Tribunal decided that the Claimant was not disabled. He appeals against that decision and in support seeks to introduce new evidence in the form of two consultants' reports. The issues[3]The essential issue defined by Mr Solomons was as follows:
"Was the Applicant at the relevant time a disabled person within section 1 and schedule 1 of the Disability Discrimination Act 1995 ? The Applicant relies upon a physical impairment known as folliculitis which is a chronic recurring infection of the hair follicles. To that end, directions were given for the medical examination of the Claimant and for the production of relevant medical records and the reports of experts. The Claimant, too, was required to set out in writing "a witness statement describing his medical condition and the effect which it has on his day-to-day activities"
. The Tribunal decided that the Claimant was not disabled within the meaning of section 1 of the Disability Discrimination Act 1995 .[4]Directions sending this appeal to a preliminary hearing were given in Chambers by His Honour Judge Prophet and, at that preliminary hearing, it was sent to a full hearing by His Honour Judge Richardson and members. At that hearing the Claimant was, as today, represented by Ms Nicola Braganza of Counsel who indicated that she might seek to adduce additional medical evidence. An Order to that effect required such material to be adduced within 28 days together with an application conforming to the principles in Ladd v Marshall [1954] WLR 1489 i.e. by 6 December 2004. An agreed bundle was to be produced by 13 December 2004. The Claimant was in receipt of public funding from 10 September 2004. Applications pursuant to those directions were made out of time at our hearing of the appeal. Oral argument was made by Ms Braganza and a written Skeleton Argument was submitted by Mr Irvine Maccabe, Counsel instructed for the first time at the appeal. The facts[5]The Tribunal found the following facts:
"5(i) The Applicant was employed as a bus driver from 1996 until 3 February 2004. (ii) The Applicant suffered from folliculitis from the late 1990s. He has been off work intermittently until dismissed by the Respondent as a consequence of his attendance record. (iii) The Applicant had undergone treatment for his condition. At the time of dismissal he was still suffering from folliculitis to his scalp and groin and backside. His condition had been improving since late 2003. The condition made him depressed. He also complained of pains in his neck and shoulder blade and shooting pains in his legs. (iv) At one time in 2002 the Applicant had received treatment from the dermatology department at the Royal London Hospital. He had not attended the Royal London Hospital since at least September 2003. He had been receiving homeopathic treatment since January 2004 though he had unsuccessful homeopathic treatment in the past."
[6]His dismissal was on account of his repeated absences. As described by Professor Bleehan, Consultant Dermatologist on 7 February 2005, follicular occlusion, which is more common in African Caribbean men than Caucasians, involves lesions on the scalp and backside which suppurate, cause pain and discomfort and disfigurement. There was no dispute that the Claimant suffered from folliculitis. It caused him to be depressed, but: "There was no medical evidence to suggest that the Claimant had suffered any mental impairment i.e. he was suffering from a clinically well-recognised illness".[7]It held that there was no medical evidence to support the Claimant's contention that this condition had an effect on his normal day-to-day activities, the Tribunal basing itself on a report of Dr Donnelly a Consultant Physician/Rheumatologist and Clinical Director in Specialist and Emergency Medicine at Whipps Cross University Hospital of 18 September 2003. It particularly considered mobility when it formed that judgment. If it were wrong about that it went on to hold that it would have found in the alternative that there was no substantial adverse effect on the Claimant's normal day-to-day activities.[8]The Tribunal then considered disfigurement. It considered the guidance issued by the Secretary of State. It concluded, having cited the sole example in the guidance, which is a comparison between a disfigurement on the face and on the back, that the Claimant was not disabled by reason of severe disfigurement.[9]It went on to give directions for the hearing of the Claimant's ordinary unfair dismissal case which has been stayed pending the appeal. The legislation[10]The Tribunal set out the relevant provisions of the legislation as to which no submissions have been made before us and which we take to represent a comprehensive view of the relevant provisions:
"8. The Tribunal considered Section 1 Disability Discrimination Act 1995 which provides: "(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."
The Tribunal also considered Schedule 1 Disability Discrimination Act 1995 and particularly paragraphs 3 and 4 thereof. Paragraph 3(1) provides that:
"An impairment which consists of a severe disfigurement is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities."
Paragraph 4(1) provides:
"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: (a) Mobility (c) Physical co-ordination 9. The Tribunal also had regard to the Guidance relating to the definition of disability and particularly to paragraphs A.16 and A.17 thereof. Paragraph A.16 of the Guidance provides: "where an impairment consists of a severe disfigurement it is to be treated as having a substantial adverse effect on the person's ability to carry out normal day-to-day activities. There is no need to demonstrate such an effort."
Paragraph A.17 provides: "Examples of disfigurements include scars, birth marks, limb or postural deformation or diseases of the skin. Assessing severity will be mainly a matter of the degree of the disfigurement. However, it may be necessary to take account of where the feature in question is (eg on the back as opposed to the face)".[11]Schedule 1 paragraph 3 provides as follows: Severe disfigurement "3. -(1) An impairment which consists of a severe disfigurement is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities.(2) Regulations may provide that in prescribed circumstances a severe disfigurement is not to be treated as having that effect.(3) Regulations under sub-paragraph (2) may, in particular, make provision with respect to deliberately acquired disfigurements."[12]It is common ground that severe disfigurement does not require proof of substantial adverse effect. Paragraph 6 of Schedule 1 to the Act provides that medical treatment is to be discounted. This is not an issue in this case. On appeal only mobility is relied upon.[13]As for the procedural aspects of this appeal, Practice Direction paragraph 8 sets out the procedure to be adopted when new points are sought to be argued on appeal, and where fresh evidence is sought to be adduced. The principles in Ladd v Marshall are applied: 8 FRESH EVIDENCE AND NEW POINTS OF LAW "8.1 Where an application is made by a party to an appeal to put in, at the hearing of the appeal, any document which was not before the Employment Tribunal, and which has not been agreed in writing by the other parties, the application and a copy of the documents sought to be admitted should be lodged at the EAT with the Notice of Appeal or the respondent's Answer, as appropriate. The application and copy should be served on the other parties. The same principle applies to any oral evidence not given at the Employment Tribunal which is sought to be adduced on the appeal. The nature and substance of such evidence together with the date when the party first became aware of its existence must be disclosed in a document, where appropriate a witness statement from the relevant witness with signed statement of truth, which must be similarly lodged and served. 8.2 In exercising its discretion to admit any fresh evidence or new document, the EAT will apply the principles set out in Ladd v Marshall [1954] 1WLR 1489 , having regard to the overriding objective, ie:8.2.1 the evidence could not have been obtained with reasonable diligence for use at the Employment Tribunal hearing;8.2.2 it is relevant and would probably have had an important influence on the hearing;8.2.3 it is apparently credible. Accordingly the evidence and representations in support of the application must address these principles. 8.3 A party wishing to resist the application must, within 14 days of its being sent, submit any representations in response to the EAT and other parties."[14]The Practice Direction allows for the provision of Chairman's notes in certain circumstances and a Direction was given and complied with in this case. We are grateful to the Chairman for providing his notes. The Claimant's submissions[15]Ms Braganza today sought permission to introduce a supplementary bundle of 20 pages of medical notes and reports. The sole objection to this was that they added nothing to the appeal, and the bundle had been organized in accordance with Judge Richardson's directions. No prejudice was asserted by the Respondent in respect of the adduction of this material. We allowed it to be produced.[16]She also sought to introduce the report of Professor Bleehan (para 6 above) and of Dr Bermingham, Consultant Psychiatrist, of 1 February 2005. In a written application lodged the day before the appeal hearing, solicitors representing the Claimant sought permission to produce these two reports as complying with Ladd v Marshall principles. It was contended that the Claimant was in person and "could not have provided the said experts' evidence at the said [ie Employment Tribunal] hearing as he did not have funds to do so." It was also contended that the Claimant did not appreciate either at the Employment Tribunal Directions hearing or at the preliminary hearing that "he was required to provide medical evidence relating to his depression". It was contended that the two reports would have had a significant influence upon the decision as to whether the Claimant was disabled and, had the Tribunal read them; it would have concluded that he was disabled. The reports are credible.[17]Turning to the substance of the appeal, the Claimant contended that the Tribunal had failed to recognise that the Claimant was a litigant in person and it ought to have granted an adjournment so that he could produce evidence relating to depression. The Tribunal had erred in that it failed to carry out an inquisitorial function. The conclusion that there was no medical evidence relating to depression being a mental impairment was perverse. The Tribunal had erred in its approach to physical impairment in failing to carry out an assessment of the Claimant's mobility at the times when the condition of which he was complaining had flared up. It erred in relying on Dr Donnelly's report since it did not deal with folliculitis. It further erred in concluding that there was no substantial adverse effect in that the Claimant could walk certain distances.[18]As to disfigurement, the Tribunal erred in its application of the guidance since it did not quantify the severity of the disfigurement, "and in its application of the example" given in the guidance. The Respondent's case[19]The only opposition to the Claimant's first application to adduce additional documents was that it did not comply with the timing of Judge Richardson's Order. We do not diminish the force of a submission which requires adherence to case management orders, but we have decided to take a pragmatic approach to this application and allow it.[20]As for the additional medical reports, Mr Maccabe contended that the application was out of time. It was an abuse of process for a Claimant to be able to rely on medical evidence, obtained following the grant of Legal Services Commission assistance on appeal, which would not be available on first instance hearing. Judge Richardson's Orders had not been complied with. The Respondent had no opportunity to produce its own medical evidence or even to consider with its medical advisers the contents of the two Consultants' reports. The psychiatric evidence relates to a new issue which was not in play before the Employment Tribunal. This would require investigation of facts by the Employment Tribunal and consideration of any evidence the Respondent might wish to adduce. In accordance with long standing EAT practice such new issues should not be admitted on appeal: Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 at paragraphs 19 to 21 per Robert Walker LJ. Alternatively, the application did not meet the test in Ladd v Marshall (above), at least in respect of proving that the material could not have been adduced earlier. The Claimant's own evidence indicated that he had been treated in three hospitals by specialist dermatologists. His Originating Application indicated he was suffering a distressing medical problem for which he was being treated by anti-depressants. At the directions hearing only the physical condition of folliculitis was relied on by the Claimant. He carried out the directions in respect of producing his own statement of his condition, together with medical evidence to support it. It was open to him to produce dermatological evidence and psychiatric evidence, but he did not do so.[21]Since Ms Braganza in reply had withdrawn her contention that the reason for the failure to adduce this evidence was to due to lack of funding (it being made clear to us that Legal Services Commission help would have been available for the production of expert evidence in at the Employment Tribunal, or possibly from the Disability Rights Commission), the application must be dismissed. The legal principles[22]The legal principles for dealing with the presentation of evidence relating to disability, and the interpretation of section 1 and schedule 1, emerge from the following authorities. In McNicol v Balfour Beatty Rail Maintenance Ltd [2002] IRLR 710 CA Mummery LJ giving the judgment with which the other Lords Justices agreed said as follows: "16 Conclusion In my judgment, only two general points are worth making. This appeal highlights the crucial importance(a) of applicants making clear the nature of the impairment on which the claim of discrimination is advanced and(b) of both parties obtaining relevant medical evidence on the issue of impairment. As happened in this case, a directions hearing should be held by the chairman of the tribunal to clarify the issues and to ascertain the nature of the evidence which the parties intend to adduce. 17 The approach of the tribunal should be that the term 'impairment' in this context bears its ordinary and natural meaning. It is clear from Schedule 1 to the 1995 Act that impairment may result from an illness or it may consist of an illness, provided that, in the case of mental impairment, it must be a 'clinically well-recognised illness'. Apart from this there is no statutory description or definition of physical or mental 'impairment'. The Guidance issue under s.3 of the 1995 Act by the Department for Education and Employment on 25 July 1996 states in the introduction section in Part 1 that 'it is not necessary to consider how an impairment was caused' and some examples of physical and mental impairment are given (eg sensory impairments affecting sight or hearing), but no general definition or description of 'impairment' is attempted. 19 It is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment with the stated effects. Such a decision can and should be made without substituting for the statutory language a different word or form of words in an ambitious and unnecessary attempt to describe or to define the concept of 'impairment'. The essential question in each case is whether, on sensible interpretation of the relevant evidence, including the expert medical evidence and reasonable inferences which can be made from all the evidence, the applicant can fairly be described as having a physical or mental impairment. The ordinary meaning of the statutory language and of the Guidance issued by the Secretary of State under 3(1) is sufficiently clear to enable the tribunal to answer the question on the basis of the evidence. The decision of the employment tribunal in this case is consistent with that approach and does not contain any error of law. 26 As to the function of the tribunal, it was submitted that it should adopt an inquisitorial and more proactive role in disability discrimination cases, as they can be complex and involve applicants whose impairment leads them to minimise or to offer inaccurate diagnoses of their conditions and of the effects of their impairment. I do not think that it would be helpful to describe the role the employment tribunal as 'inquisitorial' or as 'proactive'. Its role is to adjudicate on disputes between the parties on issues of fact and law. I agree with the guidance recently given by Lindsay J in Morgan v Staffordshire University [200211RLR 190 in paragraph 20. The onus is on the applicant to prove the impairment on the conventional balance of probabilities. In many cases there will be no issue about impairment. If there is an issue on impairment, evidence will be needed to prove impairment. Some will be difficult borderline cases. It is not, however, the duty of the tribunal to obtain evidence or to ensure that adequate medical evidence is obtained by the parties. That is a matter for the parties and their advisers. Sensible and sensitive use of the tribunal's flexible and informal procedures and its case management powers enable it to do justice on this issue by reminding the parties at the directions hearing of the need in most cases for qualified and informed medical evidence, bearing in mind that an unrepresented person may need some explanation about what is involved and what is required and also bearing in mind the cost of obtaining such evidence, the need to keep costs down and limited resources available to many parties in the employment tribunal. The tribunal may also grant an adjournment where it is appropriate for evidence to be obtained on the issue of impairment.[23]In that case, the procedure outlined by Mummery LJ had been followed and thus the EAT had been correct to dismiss an appeal by the Claimant against the finding of the Employment Tribunal that he was not disabled.[24]The approval of the EAT's judgment in Morgan v Staffordshire University [2002] IRLR 190 EAT is a reference to the following: "(1) Advisers to parties claiming mental impairment must bear in mind that the onus on a claimant under the DDA is on him to prove that impairment on the conventional balance of probabilities. (2) There is no good ground for expecting the tribunal members (or Employment Appeal Tribunal members) to have anything more than a layman's rudimentary familiarity with psychiatric classification. Things therefore need to be spelled out. What it is that needs to be spelled out depends upon which of the three or four routes we described earlier in our paragraph 9 is attempted. It is unwise for claimants not clearly to identify in good time before the hearing exactly what is the impairment they say is relevant and for respondents to indicate whether impairment is an issue and why it is. It is equally unwise for tribunals not to insist that both sides should do so. Only if that is done can the parties be clear as to what has to be proved or rebutted, in medical terms, at the hearing. (3) As the WHOICD does not use such terms without qualification and there is no general acceptance of such loose terms, it is not the case that some loose description such as 'anxiety', 'stress' or 'depression' of itself will suffice unless there is credible and informed evidence that in the particular circumstances so loose a description nonetheless identifies a clinically well-recognised illness. In any case where a dispute as to such impairment is likely, the well-advised claimant will thus equip himself, if he can, with a writing from a suitably qualified medical practitioner that indicates the grounds upon which the practitioner has become able to speak as to the claimant's condition and which in terms clearly diagnoses either an illness specified in the WHOICD (saying which) or, alternatively, diagnoses some other clinically well-recognised mental illness or the result thereof, identifying it specifically and (in this alternative case) giving his grounds for asserting that, despite its absence from the WHOICD (if such is the case), it is nonetheless to be accepted as a clinically well-recognised illness or as the result of one. (4) Where the WHOICD classification is relied on, then, in any case where dispute is likely, the medical deponent should depose to the presence or absence of the symptoms identified in its diagnostic guidelines. When a dispute is likely, a bare statement that does no more than identifying the illness is unlikely to dispel doubt nor focus expert evidence on what will prove to be the area in dispute. (5) This summary we give is not to be taken to require a full consultant psychiatrist's report in every case. There will be many cases where the illness is sufficiently marked for the claimant's GP by letter to prove it in terms which satisfy the DDA. Whilst the question of what are or are not 'day-to-day activities' within the DDA is not a matter for medical evidence -Vicary v British Telecommunication plc [1999] IRLR 680 EAT, the existence or not of a mental impairment is very much a matter for qualified and informed medical opinion. Whoever deposes, it will be prudent for the specific requirements of the Act to be drawn to the deponent's attention. (6) If it becomes clear, despite a GP's letter or other initially available indication, that impairment is to be disputed on technical medical grounds then thought will need to be given to further expert evidence, as to which see De Keyser v Wilson [2001] IRLR 324 at p.330. (7) There will be many cases, particularly if the failure to make adjustments is in issue, where the medical evidence will need to cover not merely a description of the mental illness but when, over what periods and how it can be expected to have manifested itself, either generally or to the employer in the course of the claimant's employment. Thus claimants' advisers, before seeking medical evidence, must consider also whether it will be enough to prove a present impairment and whether, instead or in addition, they will need to prove it at some earlier time or times and to prove how it could, earlier or at present, have been expected to have manifested itself. (8) The dangers of the tribunal forming a view on 'mental impairment' from the way the claimant gives evidence on the day cannot be overstated. Aside from the risk of undetected, or suspected but non-existent, play-acting by the claimant and that the date of the hearing itself will seldom be a date as at which the presence of the impairment will need to be proved or disproved, tribunal members will need to remind themselves that few mental illnesses are such that their symptoms are obvious all the time and that they have no training or, as is likely, expertise, in the detection of real or simulated psychiatric disorders. (9) The tribunal are not inquisitorial bodies charged with a duty to see to the procurement of adequate medical evidence -see Rugamer v Sony Music Entertainment UK Ltd [2001] IRLR 644 at paragraph 47. But that is not to say that the tribunal does not have its normal discretion to consider adjournment in an appropriate case, which may be more than usually likely to be found where a claimant is not only in person but (whether to the extent of disability or not) suffers some mental weakness.[25]In an appeal to the EAT on the grounds of perversity, the EAT should refuse such an application unless an overwhelming case is made out: Yeboah v Crofton [2002] IRLR 634 (CA).[26]As to the admission of new evidence , the principles in Ladd v Marshall apply. New points of law may be taken only in exceptional circumstances: Jones v Governing Body of Burdett Coutts School (above). Conclusions[27]As we have said, we are prepared to admit the first supplementary bundle of documents into the bundle. They were before the Employment Tribunal and before the medical advisers. They should have been included in the agreed bundle, but justice is done by us reading them today.[28]As to the application to admit the two new consultants' reports, we are divided. Ms Branney and Mr Smith would uphold the application for the reasons Ms Braganza gives. The material is of assistance in shedding light upon the decision, it plainly could have a significant effect on the decision of the Tribunal and is credible being written by Consultant Practitioners. The issue of depression was in the Originating Application and is not a new point.[29]I have the misfortune to disagree with them. The issues having been carefully defined at the directions hearing, the sole issue to be tried was physical impairment and not mental impairment. This is a new issue. It would require an opportunity to be given to the Respondent to produce its own psychiatric evidence. It is not a truly exceptional circumstance outlined in Jones . The application anyway is made long after Judge Richardson's Order and difficulty obtaining the client's instructions, particularly once solicitors were in receipt of LSC funding, is not an excuse. If I am wrong about this being a new issue (and in any event, this applies only to psychiatric evidence) I would hold that the material could have been adduced with due diligence prior to the Employment Tribunal hearing. The Claimant did obtain his own medical evidence as directed and clearly focused upon his own statement, which is articulately written. The evidence discloses treatment by at least three specialist dermatological departments and it was open to the Claimant to go back to one of them for a report. If the Claimant were truly making a claim based on mental impairment, which it is fair to say had a respectable foundation in the Originating Application, he should have made this clear at the directions hearing or at the preliminary hearing.[30]The majority prevails. We are all agreed on the application meeting the second and third conditions in Judge Richardson's[31]As to the substantive appeal, it is first necessary to determine the date upon which the question of disability is to be answered. Mr Maccabe submitted it was the date of the dismissal i.e. 3 February 2004. The Tribunal had medical records and notes from 1997 to 13 February 2004. It principally relied on a report of Dr Donnelly of 18 September 2003. The fresh evidence we have admitted arises from examination of the Claimant roughly one year after his dismissal. The legal question on appeal is: in the light of all the material did the Tribunal err in concluding that the Claimant was not disabled? Mental impairment[32]The Tribunal had evidence that the Claimant was depressed and taking anti-depressants. We reject Mr Maccabe's tongue in cheek submission that half the population is on anti-depressants. Whether it was an issue or not (on which we are divided), we all agree that the Tribunal cannot be faulted when it found (para 6 above) that there was no evidence of a mental impairment sufficient to meet the terms of a clinically well-recognised illness under the Act . The close attention given to this condition by Dr Bermingham, a year after the alleged act of discrimination, shows that the Claimant does have a clinically well recognised condition which would qualify him as disabled if Dr Bermingham's evidence were accepted by a Tribunal following, if so advised, evidence on behalf of the Respondent and cross examination of Dr Bermingham. But as at the date of the dismissal in 2004, even armed with what we now know, we cannot fault the Tribunal's assessment of the evidence as falling short of mental impairment within the meaning of the Act . Since, as Ms Braganza submits, the Originating Application indicated that the Claimant was depressed, and the medical notes carry reflections of that, the Claimant should have put sufficient evidence forward. As Lindsey P made clear (see the citation from paragraph 20(3) in Morgan (above)) it is for the Claimant to produce evidence going beyond loose description such as depression to indicate that he or she is suffering from a clinically well recognised illness, or the results of one. For that reason, too, we reject the contention that the Tribunal was under a duty to conduct an inquisitorial hearing.[33]The Tribunal at the preliminary hearing was under no duty to adjourn when no application had been made to it and no grounds were put forward. It was operating along the tram lines set for it by the direction hearing. Dr Bermingham has not indicated any difficulty the Claimant has in articulation or communication since he refers to the Claimant's IQ and educational attainments, and his self-assessment in his letter to the Tribunal appears to us to be highly articulate and well focused upon his condition. Even bearing in mind that the Claimant represented himself, we consider the Tribunal was under no duty to adjourn the proceedings so that further evidence might be sought. Nor do we know whether the Claimant would have presented differently in 2004 from that which Dr Bermingham saw in 2005. Severe disfigurement[34]It has not been said that this aspect was not within the remit of the preliminary hearing. It was after all related to folliculitis as a physical condition. The Tribunal accepted that the Claimant had disfigurement. The question under the statute was whether it was "severe". The Tribunal paid attention to the sole illustration given in the guidance, which was to juxtapose a disfigurement which appears on the face and on the back. The Claimant presented such an example. In the context of scars and lesions, the location is important and it affects ordinary people's judgment about its severity. As the illustration makes clear, a four-inch square scar or lesion is a disfigurement; but protection against discrimination for having such a lesion is more necessary when it is visible on the face then when it is invisible on the backside. That is why one is more likely to be "severe" than the other. The appreciation of such matters is one of degree for an Employment Tribunal and we see no error when this Tribunal, having considered the guidance and the sole illustration, formed the judgment that the Claimant was not disabled by reason of severe disfigurement. We note that Professor Bleehan expresses a view on severe disfigurement, but of course this is a question of fact for the Employment Tribunal and not one upon which a Consultant's view should carry any additional weight. Day-to-day activities[35]Whether the claim is put as a restriction on mobility, or, on appeal, on mobility and ability to concentrate, our view of the Tribunal's judgment is the same. Ms Braganza has mounted a forceful case contending that the Claimant's day-to-day activities in relation to his mobility were affected and if that were the statutory test, we would have agreed with her. But the Tribunal was asked to consider whether it had a substantial effect, and as it put it in its alternative finding, it did not. That again is a matter of appreciation for a Tribunal of fact. Its decision is not perverse as mounting the high threshold set out in Yeboah v Crofton [2002] IRLR 634 (CA). The Tribunal was faced with a description of the effect of the condition given by, on the one hand, the Claimant in his letter and, on the other, Dr Donnelley to whom he had been referred by his GP. True it is that Dr Donnelly concentrates on the rheumatological condition which the Claimant also presented: aches and pains in his joints and muscles. But Dr Donnelly forms an overall judgment about the Claimant's fitness which is at odds with the Claimant's own description and, for the purposes of this appeal, that of Professor Bleehan. Dr Donnelly was well aware that an appointment was pending for the Claimant with dermatology specialists, and he had been seen previously by them. While no doubt he would accept that his specialism is not dermatology, he as a supervising physician was in a position to give a view about the Claimant's overall approach to day-to-day activities. He trenchantly expressed the opinion three times that the Claimant should not have been in receipt of sickness benefits for he was fit to work. Given that the Claimant produced this material, the Tribunal cannot be faulted for accepting it, albeit diametrically opposed to the evidence written by the Claimant himself. Nor it must be said, did either Professor Bleehan or Dr Bermingham comment directly upon and resolve any differences between their reports and Dr Donnelly's report which they had seen.[36]It follows that we see no error in the Tribunal's alternative finding that there was no substantial effect on the Claimant's mobility in respect of day-to-day activities. Another Tribunal, or a Tribunal possessed of the fresh medical evidence which we now have, might have formed a different view, but that simply shows that these are questions of fact for a Tribunal. Disposal[37]Accordingly this appeal is dismissed. We would very much like to thank both Counsel for their attention to the detail in this case. Pursuant to Employment Tribunals Act 1996 s 35, in the disposal of the appeal at the oral hearing we gave directions which the Employment Tribunal could have given for the speedy onward progress of the unfair dismissal case with a reminder that the facilities of ACAS are available now that this case is back in the Employment Tribunal. Although Mr Maccabe has hinted we might review this Order, if that application were made under Rule 33 it would be out of time and there is no explanation. To avoid any conflict with what the Employment Tribunal wants to direct, there will be liberty to apply to the Employment Tribunal to amend or vary that aspect of our Order.

Order

this material could have an important impact on the Tribunal's decision since it is focused and explicit. And, although the Claimant's case is that the material is credible, it is not necessary to go that far, for we accept that the test is "apparently credible" and coming from the sources it does, it plainly is.