MRS P R BEALES v THE SECRETARY OF STATE FOR WORK AND PENSIONS [2006] UKEAT 0602_05_1809

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2006] UKEAT 0602_05_1809

Case No Appeal No. UKEAT/0602/05

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS P R BEALESAPPELLANT

THE SECRETARY OF STATE FOR WORK AND PENSIONSRESPONDENT

Before

His Honour Judge D Serota

Date 18 September 2006

[1]APPEARANCES For the Appellant MR BEALES (Husband) For the Respondent MISS D SEN-GUPTA (Of Counsel) Instructed by: Messrs Field Fisher Waterhouse Solicitors 35 Vine Street London EC3N 2AA SUMMARY The Claimant claimed that she was disabled within the meaning of the Disability Discrimination Act 1995. She claimed she was suffering from carpal tunnel syndrome, which was accepted. She also complained she was suffering from a mental impairment, i.e 'stress'. Before the Employment Tribunal she failed to adduce any medical evidence beyond certain brief Occupational Health reports, despite being offered an adjournment to enable her to have the opportunity to so. The Chairman, who sat alone found on the evidence that she had not shown she had suffered substantial and long-term effects on her ability to carry out her normal day to activities. He was also not satisfied on the evidence that she suffered from a clinically recognised mental illness. The EAT held that the decision of the Chairman was one he was entitled to come to on the facts and evidence before him. In relation to mental illness a Claimant must do more than claim to be suffering from a generic condition such as 'stress' but must go further and produce some evidence, preferably medical evidence, as to a particular condition from which he or she may be said to suffer. HIS HONOUR JUDGE SEROTA QC This is the Full Hearing of an Appeal from a decision of the Employment Tribunal at Exeter of 29 June 2005 (S Richardson Esq, sitting alone as Chairman). He determined at a pre-hearing review that the Claimant was not disabled by reason of either or both of two conditions, depression or carpal tunnel syndrome. He subsequently refused to review his decision based on the submission of a medical report from a Dr Hickling, to which I shall refer later, because it was available at the hearing. The Notice of Appeal came before the President Elias J on 31 October 2005. He disposed of certain grounds under Rule 3 and referred others to a Preliminary Hearing. At the Preliminary Hearing on 7 December 2005 His Honour Judge Richardson ordered that there should be a Full Hearing with lay members.

[2]It is convenient perhaps to refer to the relevant statutory provisions to identify what the Claimant needed to prove in order to be regarded as being disabled within the meaning of the Disability Discrimination Act 1995 . Section 1(1) of the Act provides that:

"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."

At the relevant time (the Act has since been amended) Schedule 1 paragraph 1 of the Act provided that if a person's disability was the result of a mental illness, that had to be a 'clinically recognised illness'. Section 3 of the Act entitles the Secretary of State to issue guidance to be taken into account in determining whether a person is a disabled person. Guidance on matters to be taken into account in determining questions relating to the definition of disability was issued in 1996. I draw attention to paragraphs 13 to 15:

"13. Mental impairment includes a wide range of impairments relating to mental functioning, including what are often known as learning disabilities (formerly known as "mental handicap"). However, the Act states that it does not include any impairment resulting from or consisting of a mental illness unless that illness is a clinically well-recognised illness (Sch 1, para 1). 14. A clinically well-recognised illness is a mental illness which is recognised by a respected body of medical opinion. It is very likely that this would include those specifically mentioned in publications such as the World Health Organisation's International Classification of Diseases. 15 The Act states that mental impairment does not have the special meaning used in the Mental Health Act 1983 or the Mental Health (Scotland) Act 1984, although this does not preclude a mental impairment within the meaning of that legislation from coming within the definition in the Disability Discrimination Act (s68)"

. Part 2A1 deals with the meaning of 'substantial'; paragraph A1 provides:

"The requirement that an adverse effect be substantial reflects the general understanding of "disability" as a limitation going beyond the normal differences in ability which may exist among people. A "substantial" effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects. "

Substantial" effect is one than which is more than "minor" or "trivial". I should also refer to paragraph A4 headed 'Cumulative effects of an impairment' :

" The Act provides that an impairment which is to be taken to affect the ability of a person to carry out normal day-to-day activities only if it affects that person in one (or more) of the respects listed in paragraph C4 (Sch 1 paragraph 4). An impairment might not have a substantial adverse effect on a person in any one of these respects, but its effects in more than one of these respects taken together could result in a substantial adverse effect on the person's ability to carry out normal day-to-day activities."

[3]To return to the Act; Schedule 1 of paragraph 4 which supplements Section 1 of the Act provides:

"(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: (a) mobility (b) manual dexterity (c) physical co-ordination (d) continence (e) ability to lift, carry or otherwise move everyday object (f) speech hearing or eyesight (g) memory or ability to concentrate, learn or understand or (h) perception of the risk of physical danger"

Detailed guidance in relation to these matters is given in Part C of the Guidance to which I have referred. Factual Background of Proceedings before the Employment Tribunal

[4]The Claimant commenced employment on 13 October 1997, for the Respondent, originally at the Saltash Job Centre at a management level. Later in 1999 she moved to Launceston. Her job involved the use of key boards and telephones. She claimed that after a new manager was appointed she was subject to bullying and harassment. We have not investigated this matter but understand that she was successful in claiming she had been unfairly dismissed before the Civil Service Appeal Tribunal.

[5]The Employment Tribunal set out her medical history, and noted her periods of ill-health absence. She was referred to Occupational Health Services and a report was prepared on 20 December 2000. The report made clear that a full recovery was anticipated. There was a recommendation concerning the resolution of management issues. On 17 February 2003 the Claimant began a sickness absence which was described as stress-related and later a certificate dated 17 March 2003 was sent to the Respondent stating that the Claimant suffered from carpal tunnel syndrome. As at August 2004 she had not returned to work. At the time the matter came before the Employment Tribunal there were concurrent proceedings in the County Court in which she sought damages for personal injuries. We are not aware of the details of those proceedings. The Claimant was legally represented in the County Court but was not legally represented in the Employment Tribunal. The conduct of her case lay with her husband who appeared as advocate both before the Employment Tribunal and before us. We believe she was dismissed on the grounds of capability.

[6]The issue before the Chairman was to determine if the Claimant was disabled within the meaning of Section 1 of the Act, to which we have referred, by reason of either or both of the two conditions, depression and carpal tunnel syndrome. The Chairman noted with regret that he sat without lay members.

[7]Prior to the hearing the Respondent had been prepared to concede (see letter of 24 May 2005 from the Respondent's solicitors, D A Piper Rudnick Gray Cary) that the Claimant had condition carpal tunnel syndrome. They continued:

"and it is likely that she was a person with a disability at the time of her dismissal, i.e. 20 August 2004'. However, it is still an issue to be determined by the Tribunal whether the Claimant meets the criteria set out in Section 1 of the Disability Discrimination Act 1995 in relation to this condition. The Tribunal will also need to consider the duration of any disability which may arise out of the condition of carpal tunnel syndrome. The Respondent still requires the determination of this issue which is to be on this issue of disability ..."

. The letter also made clear that at a Preliminary Hearing the Employment Tribunal would determine whether the Claimant had a mental illness and the duration of any consequent disability.

[8]The question of medical evidence had been raised at two Case Management conferences. Nevertheless, there was only limited medical evidence before the Employment Tribunal at the hearing. The evidence that was before the Employment Tribunal was as follows: three "sick notes" expressed to be for social security and statutory sick pay purposes only prepared by the Claimant's G.P. Against the part of the document 'diagnosis of your disorder causing absence from work doctor's remarks' one has simply 'stress at work'. These certificates were dated 21 September, 5 October and 14 November 2000. There was then an extract from the Claimant's G.P.'s records which did not take matters very much further. There then follow three outcome summary reports prepared by Occupational Health Services for the Respondent. The Respondent had referred the Claimant to Occupational Health Services. The first of those reports contains the following in answer to the question 'What is the current condition, prognosis and anticipated date of return to work (if appropriate)?:

"This woman is suffering as you know, from stress. She gives a clear and cogent history of work related issues causing this. Her husband has a blood disorder, but this is hardly terminal. She has now returned to work."

In answer to the question:

"Is this person capable of working in his/her present/proposed duties as described in the referral?"

The Doctor replied:

"Despite her depression she remains at work carrying out her duties."

And in answer to the third point:

"Can we expect a full and effective service when the Officer returns to duty? The answer was: "

Once her depression has resolved she should be able to give good service." At that point in time the doctor completing the report had this to say about the effect of the stress on the Claimant's activities:

"As the impact on her activities of daily living is not great DDA would not apply."

[9]In relation to questions of reasonable adjustments needed in the work place to accommodate the disability, the report states:

"She continues to suffer from stress and depression. She should avoid work stresses as much as possible. Work should be well organised and predictable if possible. She requires good management support, and feel supported. I have no doubt that early resolution of the outstanding management matters would speed her recovery"

With good management support she should have a normal attendance level." It is to be noted that no other underlying health problems had been identified and she was not receiving any treatment and full recovery was anticipated. Finally, it is stated:

"The referral raises no questions. The management report raises mainly management issues, and these were aired again at her interview. It seems fairly clear that she is responding to both admitted and perceived work pressures. Resolving the management issues undoubtedly the main obstacle to her full recovery. Question 13: harassment is a management issue."

This report is dated 20 December 2000.

[10]The second Occupational Health Report is dated 22 April 2004 and is prepared by Dr Tony Freeman. In answer to the question as to what are the current condition, prognosis and anticipated date of return to work (if appropriate), one finds the following:

"She indicated to the examining Doctor that she felt anxious about returning to work and facing people. She has continuing stress symptoms and depression relating to how she felt about her work situation prior to her sickness absence and her grievances with management about how she felt her case had been handled. She had developed wrist problems in Autumn 2002 thought to be due to carpal tunnel syndrome. Despite using wrist splints, her symptoms have persisted and her GP is planning to refer her to an Orthopaedic specialist. Daily living activities are affected. The examining Doctor considers that with appropriate surgical treatment for her wrists the prognosis should be good. He expresses some uncertainty about the prognosis of her work associated anxiety which has caused marked impairment of self confidence and self esteem. A return to work within the next 6 months seems unlikely unless the dispute with management can be successfully resolved."

She is described as remaining unfit for work but with appropriate treatment for her wrist problem and her stress symptoms, resolution of her dispute with management, and with suitable duties, there should be no medical reason shy she should not eventually be able to return to work and provide regular and effective service.

[11]In answer to the question as to whether the Claimant had a physical or mental impairment that had a significant and long-term effect on normal day to day activities Dr Freeman reported:

"Symptoms of carpal tunnel syndrome since autumn 2002. Stress symptoms with depression since February 2003. Daily living activities substantially adversely affected in terms of manual dexterity, ability to lift and carry, and on memory and concentration."

[12]Dr Freeman reported that when the Claimant returned to work it should initially be on a part-time basis and should she have continuing wrist symptoms, keyboard work, typing, and writing should be excluded and consideration should be given to the provision of voice activated software. Various suggestions were made for easing her return to work and making adjustments to her working practices. It was noted that she was awaiting an orthopaedic assessment for her wrist problem and she should discuss with her G.P. referral to a clinical psychologist for cognitive behavioural therapy.

[13]The final report is an amendment to the report of 22 April 2004, prepared by Dr McLean. He had added to the earlier report his opinion that a return to work within the next 6 months seemed unlikely unless the Claimant could come to terms with the current situation, even though she still felt aggrieved. All her anxiety appeared to be related to her perception of the outcome of the investigation, (into her absence and performance).

[14]The Chairman records that at the outset of the hearing he raised the absence of any formal reports with the Claimant and pointed out the difficulties this could give rise to for him in reaching the decision especially in respect of mental impairment. He was told by the Claimant that the cost of obtaining such reports was expensive and she did not obtain any. He was told of the existence of the personal injury claim and that a report had been disclosed to the Respondent's solicitors but only in respect of the claim and the advocate appearing on behalf of the Respondent, Miss Fitzimmons had not seen the report because a 'Chinese wall' had been erected within the Respondent's office. The decision records that the Claimant then told the Chairman that she had with her another report recently received. The Chairman asked if she wished to rely upon it. He pointed out if she did the Respondent would be entitled to seek an adjournment as it might wish to call its own evidence. The Claimant said she had found waiting for this hearing stressful and she was keen to press on and did not want an adjournment. After a brief discussion with her husband who was representing her she decided not to rely on the report. The Chairman offered her a short adjournment to enable her to consider the position with her husband. She declined the offer even though the Chairman reminded them of the risks of not using the report. They considered that the evidence before the Chairman (which I have set out) would be sufficient.

[15]It appears that there was some misunderstanding about the report the Claimant had with her. There was only one report, that of Dr P Hickling, a Consultant Rheumatologist who had prepared a report for the Claimant's solicitors in the personal injury proceedings, Messrs Russells Jones and Walker. I am not certain of the date of the report, although the examination on which it is based is 24 February 2004. The report appears to have been in the hands of the Claimant or her solicitors before the Case Management Conference. It was disclosed to the Respondent's solicitors in the County Court proceedings approximately 10 days before the Employment Tribunal hearing. Quite correctly the report was not made available to those dealing with the Employment Tribunal proceedings. The Chairman in his letter of 9 September 2005 refusing to review his earlier decision states that it was his understanding that it was the Claimant's solicitors who did not want the report disclosed to those dealing with the employment claim.

[16]The Chairman was clearly disturbed by the limited extent of the medical evidence before him. In his decision he states that he gave thought as to whether, given the guidance to Tribunals by the EAT and the Guidance itself, he should be more interventionist and insist upon an adjournment for the report to be produced:

"However, I was aware that there had been two case management conferences, the first resulted in an order requiring the claimant to produce any medical evidence she relied upon and the second identified the need for this hearing. The issue of medical evidence therefore had been raised well in advance of the hearing. Furthermore, the claimant was receiving legal advice in respect of her personal injury claim and so had access to legal advice. Indeed, the report that had been disclosed was to be used only for the personal injury claim …."

[17]It appears from submissions made by Mr Beales that he may not have fully understood the effect of the concession in relation to carpal tunnel syndrome made by the Respondent. Although it had been conceded the Claimant had carpal tunnel syndrome she still needed to demonstrate that she was disabled within the meaning of the Act if she were to succeed in her claim. She also needed to deploy evidence to demonstrate that her carpal tunnel syndrome was a long-term and substantial disability. Mr Beales told us that it was not apparent until he came to the Employment Tribunal that he needed to produce further medical evidence when he said 'it stuck out like a sore thumb'. One has every sympathy for the position of the Chairman. Although a report was available in relation to carpal tunnel syndrome Miss Fitzsimmons had not seen this report (and in our opinion quite properly so) and submission of the report may have necessitated an adjournment which the Claimants were unwilling to risk. The Claimant before us sought permission to rely upon Dr Hickling's report. We had to reject the application because the report was clearly available before the Employment Tribunal and the Claimant had taken a conscious decision, (even if with the benefit of hindsight the decision was unwise) to carry on without that report going into evidence. Findings of the Employment Tribunal

[18]The Chairman made clear his view that the medical evidence was not sufficient. The G.P.'s records were brief and did not constitute a report and did not help him at all with the extent of the consequences of the claimed conditions, particularly when he looked at the Guidance dealing with, for example, manual dexterity or physical co-ordination. They said nothing about whether the complaints had a substantial and long-term adverse effect.

[19]The Claimant relied upon the OHS reports and submitted that the evidence met the requirements of Section 1. The Chairman noted and accepted that the primary aim of the report was to provide advice to managers as to the steps to be taken to encourage an employee to return to work and what measures the employer should put in place to reduce absences. Having said that, the doctors undertaking the examinations in their reports do refer to the DDA:

"But in such brief perfunctory terms that the reports are of limited value."

[20]The Chairman took into account that it was for him not for the doctors to decide whether the Claimant came within Section 1:

"Nevertheless proper medical evidence, taken with other evidence, forms an important part of my consideration. The lack of medical evidence creates a disadvantage for both the Claimant and myself but the decision not to rely on other medical evidence was hers. So I proceeded on the basis on the evidence presented to me but clearly I must take account of the reports, such as they are that were before me."

[21]The Chairman first considered the issue of depression. He noted that the OHS reports suggested that anxiety or stress related to the investigation of her performances and how she felt about her work place. He noted that such anxiety and stress was by no means uncommon in those who were finding their working environment difficult especially where formal disciplinary or performance review processes were in place.

[22]He noted that the Claimant had 'researched' the area. She believed that at varying times she was suffering from compulsive repetitive stress disorder, post traumatic stress disorder and reactive depression. This was, however, contradicted by a letter her husband had written with her knowledge on 17 June 2003 in which he stated that the Claimant had never suffered from depression. The Claimant gave evidence of a number of examples to support her claim that she was suffering from mental impairment including memory loss, sleep disruption, flash back, fear of the telephone, inability to travel or even go out of the house. The Chairman, however, was concerned:

"…I had no substantive medical evidence which supports this or addresses whether the impairment had a substantial and long term adverse effect. At best it appears intermittent, triggered by events at work and although some examples were given of the impact on the day to day activities, set out in the Guidance at section C, again the evidence was patchy and I find inconclusive. I was not presented with any evidence as to whether the mental illness the claimant was suffering from (if indeed she was suffering from it) is a clinically well recognised illness by a respected body of medical opinion and certainly no reference is made by the claimant to, for example, her mental illness being mentioned in the World Health Organisations International Classification of Diseases (WHOICD-10)."

[23]We note that 'depression' or 'stress' are not in themselves recognised illnesses. They are umbrella terms that may cover a number of illnesses that are clinically recognised. The Claimant both before the Employment Tribunal and before us, attempted to suggest various clinically well recognised illnesses that might fit her condition. This was clearly unsatisfactory and the Chairman did not have any substantial medical evidence before him.

[24]In relation to carpal tunnel syndrome the Chairman considered the evidence from the Claimant who stated she had had operations in October 2004 and January 2005 to sever the tendons in both hands. She gave evidence of a number of examples where the condition had a substantial and long term adverse effect on her normal day-to-day activity. She claimed to have difficulties with buttons and zips. She could not pick up a kettle with one hand. She had problems turning on taps, opening cans, pulling off the tops of yogurts. She could not and cannot wash up and found gripping knives and forks for any length of time difficult. There was a problem squeezing shower bottles. There were problems getting food out of the oven or holding the tray. Although she had trained as an artist she did not know if she would be able to paint. She could hold bags with her arms hanging straight down but lifting the bags was a struggle. The Chairman described these matters taking account of the Guidance as being 'normal day-to-day activities'. Taking in isolation each individual example given might not be substantial but cumulatively could be 'if what the claimant says is right.'

[25]The Chairman then recorded the Respondent's evidence that there was little evidence of any of this at the time the Claimant was in work. It was conceded she had complained about aching wrists and had been given wrist supports, and other changes were made to her environment just prior to her final sick leave:

"The claimant accepts that in the main these problems were not apparent at work. Indeed she appears to have been able to carry out normal day to day activities such as making tea, using the telephone, putting on her coat, carrying bags and even typing. She says the discomfort and pain was experienced only later at home, and that she was told by her doctors that this was not uncommon with her condition."

[26]The Chairman then said this:

"28 I am faced with conflicting evidence and again the difficulty I have is the absence of any medical evidence because, for example, the OHS report comments in respect of her complaint that "it is thought to be due to CTS" and that "with appropriate surgical treatment for her wrists the prognosis should be good"

. If the treatment were to effect a permanent improvement, that is something I would need to take into account but I had before me no substantive medical evidence which would assist me and resolve the disparities in the evidence. On balance I find that certainly up to February 2003 there was at that stage no substantial and long term adverse effect on her normal day to day activities. As at the date of her dismissal, again on the limited evidence, before me I reach a similar conclusion."

[27]We think that the matters set out in these paragraphs are most important. The Chairman was concerned that while at work the symptoms of which the Claimant complained were not apparent. This clearly cast doubt on the credibility of her evidence in the absence of medical evidence to explain how she could be symptom free at work but not when at home, when doing every day tasks.

[28]The Chairman went on to direct himself by reference to certain authorities including Morgan v Staffordshire University

[2002] IRLR 190

and reminded himself that the burden was on the Claimant to establish that she had a disability on the balance of probability. Morgan was a case in which a claimant had sought to establish she had a 'mental impairment' for the purposes of Section 1(1) of the Disability Discrimination Act with only limited medical evidence. Guidance was given by the Employment Appeal Tribunal, presided over by The President, Lindsay J, as to how mental impairment was to be established. The guidance of the Employment Appeal Tribunal is encapsulated in the second part of the Head Note

2002 ICR 475

as follows:

"…in general, there would be three, or possibly four, routes for establishing a mental impairment within the Disability Discrimination Act 1995, namely, proof of a mental illness specifically mentioned as such in some other classification of very wide professional acceptance, proof by other means of a medical illness recognised by a respected body of medical opinion, and proof of the existence of a state recognisable as mental impairment, neither resulting from nor consisting of a mental illness, which could be accepted as a mental impairment within the Act because the statutory definition was inclusive only, rather than purporting to exclude anything not expressly described by it; but that the latter category was likely to be rarely if ever invoked and would require substantial and very specific medical evidence to support its existence; and that the occasional use of words such as "anxiety", "stress" and "depression" in medical reports could not without further explanation amount to proof of a mental impairment within the Act, and the notes made by the applicant's general practitioner, which spoke of her suffering from "clinical depression", could not be read as intending to indicate the presence of a classified or classifiable mental illness…"

[29]We would also refer to what Lindsay J had to say at paragraph 20:

" Whilst the words "anxiety", "stress" and "depression" could be dug at intervals out of the copies of the medical notes put before the tribunal, it is not the case that their occasional use, even by medical men, will, without further explanation, amount to proof of a mental impairment within the Act, still less as its proof as at some particular time."

[30]We also note that in the guidance given in paragraph 19(2) Lindsay J states:

"(2) There is no good ground for expecting the tribunal members (or appeal tribunal members) to have anything more than a layman's rudimentary familiarity with psychiatric classification. Things therefore need to be spelled out. …. 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 not general acceptance of such loose terms, it is not the case that some loose description should 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 none the less 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 been 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 …"

In paragraph 20(9) Lindsay J noted the tribunals:

"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 [2002] ICR 381. 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."

[31]The Chairman went on to consider the question of carpal tunnel syndrome which he regarded as being a more complicated issue. He accepted that the Claimant had a condition, probably CTS but again there was no specific diagnosis. He had this to say:

"…Although I should not simply accept the medical evidence, in fact I have had none of any substance which would tend to support the claimant's evidence of the problems she says she encountered. The difficulty with her evidence is that up until her final absence she took no time off and there appears to have been little if any impact on her normal day to day activities and certainly no substantial and long term adverse effects. The evidence after her final absence is limited and does not in my view, strengthen her case. With appropriate medical evidence she may well have met that test to show that she has a disability within the meaning of section 1. Without it she has not discharged that burden."

[32]The Claimant, had therefore failed to overcome the critical hurdle of proving that her conditions had a substantial long term effect on her ability to carry out normal day-to-day activities. The Notice of Appeal and Submissions of Support

[33]There are essentially three points raised in the Notice of Appeal. Firstly, the Employment Tribunal should have been satisfied on the medical evidence that the Claimant had made out her case she was disabled within the meaning of the Act both by reference to carpal tunnel syndrome and her mental health issues. Secondly, that the Employment Tribunal should have been satisfied she had demonstrated there was a substantial adverse effect.

[34]There is a third issue relating to the non-admission of Dr Hickling's report. We can deal with this matter summarily. This report was available at the hearing. The Claimant ill-advisedly chose not to rely upon the report. The Chairman acted well within his discretion in saying that if the report was to have been admitted there should have been an adjournment. He did his best to encourage the Claimant to consider their position. His exercise of discretion cannot be faulted. The decision not to deploy the report was that of the Claimant.

[35]Mr Beales reminded us of the decision of the Employment Appeal Tribunal (Morison J) in Goodwin v Patent Office

EAT/57/98

and the guidance given to Employment Tribunals in their approach to determining whether a person was disabled. He reminded us it was important to look at all the adverse effects separately and also cumulatively. Mr Beales submitted that the Chairman here confused issues and did not distinguish between long-term impairments and long term adverse effects. During the course of submissions we put to Mr Beales that the Chairman appeared to accept that if the Claimant's evidence was correct there would be long term adverse and substantial effects but he had conflicting evidence and was concerned as to the difference between what the Claimant was seen to do at work and her complaints. Mr Beales said that the Respondent's evidence came from a Mr Griffiths (we have his witness statement in our bundle) "who was not as truthful as he could have been". In paragraph 28 of his skeleton argument he suggests that Mr Griffiths had misled the Employment Tribunal. In his witness statement he had referred to the Claimant having pains in her wrists and in early January 2003 'some minor symptoms' in relation to complaints about her wrists became apparent at work. She said she was suffering from pains in her wrists so the Respondent offered assistance in the form of wrist support, a gel mouse mat and wrist mat together with a chair offering lumber support:

"There was however nothing that I observed in Pat's day to day activities which would give cause for concern. She was able to move her chair or equipment using just one hand or the other, she was able to put on her coat or carry bags without any problems and was able to type and use the computer. I did not notice any change in her ability to carry out day to day activities during the time that I was able to observe her as her line manager."

It seems to us that the issue as to the credibility of Mr Griffiths was entirely for the Employment Tribunal as was the question of weighing up conflicting evidence.

[36]Mr Beales went on to submit that the Chairman may not have had an understanding of what 'substantial' meant. He went on to say that the doctors had accepted the Claimant suffered from stress/depression but the Employment Tribunal did not accept what the doctors said. Stress and depression were mentioned in WHOICD though he did not have a copy with him at the hearing. He sought to explain away the letter of 17 June 2003 by saying it was out of context and was written in response to a suggestion by the Respondent that Mrs Beales had depression; the weight to be attached to that letter again was entirely a matter for the Chairman. Mr Beales considered that it was sufficient for the Claimant to have suggested that she may have suffered from various disorders to which the Chairman referred, including repetitive stress disorder, post traumatic stress disorder and reactive depression. These are all referred in the WHOICD and the Chairman should have consulted it himself. He submitted that "stress" was a sufficient definition as it appears in the WHOICD. This is true but only as a general category among the various specific types of stress then referred to. There is no general condition of "stress".

[37]Mr Beales then submitted that the Occupational Health Service were experienced and they were satisfied there was a disability within the meaning of the Act and so reported. They were satisfied both in relation to stress and carpal tunnel syndrome and that these ware causing adverse effects on the Claimant's daily living activities.

[38]Ms Sen Gupta who appeared for the Respondent, submitted that this was in effect a perversity appeal and reminded us of the very high threshold a claimant has to cross. She drew our attention in particular to the judgment of Mummery LJ in Yeboah v Crofton

[2002] IRLR 634

in which Mummery LJ had said "such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal, on a proper appreciation evidence of the law would have reached." Even in cases where the appeal tribunal has 'grave doubts about the decision of the Employment Tribunal, it must proceed 'with great care'. She also drew our attention to the decision of Mummery J when he was President of the EAT in Stewart v Cleveland Guest (Engineering)

[1994] IRLR 440

. He said that the EAT must be extremely cautious not to conclude the decision of an Employment Tribunal is flawed because the Appeal Tribunal would have reached a different conclusion on the evidence or thinks that another Employment Tribunal would have reached a different conclusion on the evidence.

[39]Ms Sen Gupta also drew our attention to Law Hospital NHS Trust v Rush a decision of the Employment Appeal Tribunal in Scotland presided over by Lord Kirkwood. He said:

"… if an employee has given evidence that he or she is unable to carry out certain normal day to day activities at home or can only do so with great difficulty, it is, in our opinion clear that evidence as to his or her ability to carry out those activities while at work without significant difficulty, could have a bearing on the credibility of the applicant. Evidence that the applicant could not carry out such activities at work, or could only carry them out with considerable difficulty, could support his or her evidence. Further, in certain circumstances evidence as to particular duties carried out by the applicant at work could equally have a bearing on the tribunal's assessment of his or her credibility and reliability. For example, if an applicant gave evidence of being unable to lift a kettle with his or her right hand at home, evidence that at work the applicant regularly lifted heavy weights with his or her right hand without difficulty could certainly have a bearing on the applicant's credibility. Accordingly, it is not, in our opinion correct to say as a matter of principle that the duties performed by an applicant at work, and the way in which they are performed, cannot be relevant to the assessment which the tribunal has to make of the applicant's evidence."

[40]Ms Sen Gupta then addressed us as to the extent to which the Employment Tribunal was bound to consider the WHOICD Index on its own, so as to speak. We have already referred to the Goodwin case. This case was considered by the Employment Appeal Tribunal (Mr Commissioner Howell QC) in Rugamer v Sony Music Entertainment UK Ltd

[2002] ICR 381

. The EAT in that case said: "... "However in our judgment it is not the case that that an employment tribunal considering a dispute between two parties is an inquisitorial body in the same sense as for example a medical or other tribunal dealing with the disablement issue as part of the statutory machinery for determining benefit claims. … the observations of Morison J relied on are shown by their context to mean no more than that the tribunal is obliged, as indeed is expressly recorded in rule 9 of the Employment Tribunals Rules of Procedure 1993, to conduct the hearing in a fair and balanced manner, intervening an d making its own inquiries in the course of the hearing of such persons appearing before it and such witnesses as are called before it as it considers appropriate, so as to ensure due consideration of the issues raised by, or necessarily implicit in, the complaint being made. However the role of the tribunal is not thereby extended as to place on it the duty to conduct a free standing inquiry of its own, or require it to attempt to obtain further evidence beyond that placed in front of it on the issues raised by the parties …" During the course of the hearing we drew attention to the decision in Mensa v Hertfordshire NHS Trust

[1988] IRLR 531

. Ms Sen Gupta relied upon what Sir Christopher Slade had to say: "I too would strongly encourage industrial tribunals to be as helpful as possible to litigants in fomulating and presenting their cases, particular at appearing in person. There must, however, be a limit to the indulgence which even litigants in person can reasonably expect. The desirability in principle f giving such assistance must always be balanced against the need to avoid injustice or hardship to the other party on the particular fact of each case. This, in my judgment, is a very good reason for holding that the manner or an extent of such assistance should generally be treated as a matter for the judgment of the tribunal and not a subject or rigid rules of law. In the present case, the Trust was in my judgment reasonably entitled to expect that the tribunal would its decision be dealing with only those issues which had been covered by the directions … and Mansa's oral submissions and evidence."

[41]Ms Sen Gupta relied upon the decision in Morgan v Staffordshire University which we have already referred to. She submitted that this Employment Tribunal went as far as an Employment Tribunal properly could go in giving assistance to Mr Beales and to the Claimant. He offered them the opportunity of a short adjournment to consider their position in relation to the lack of medical evidence, an opportunity they declined to take. Conclusions

[42]In our opinion this case is essentially one that raises issues of fact. The burden is on a Claimant to prove that he or she has suffered disability as defined in the Act. In the present case the Claimant failed on the evidence to satisfy the Chairman either in relation to the mental health issue or the carpal tunnel syndrome issue, that she suffered substantial and long-term adverse effects on her ability to carry out her normal day to day activities. This was so even though she had carpal tunnel syndrome but had failed to satisfy him that it led to substantial and long-term adverse effects. In our opinion there was conflicting evidence before the Chairman of the Employment Tribunal and he was perfectly entitled to decide the case on the basis of the evidence that he had before him, in particular the striking and unexplained distinction between the Claimant's observed and admitted condition at work and the complaints she made of disability when not at work. This was very much in accordance we would note with what Lord Kirkwood had said in the Law Hospital NHS Trust case. The Chairman was correctly and understandably concerned about the state of the medical evidence which had been raised at Case Management conferences and as the Chairman described during the course of the hearing. He correctly directed himself as to the law but was concerned as to the state of the evidence. We are unable to reverse his findings as to the credibility of Mr Griffiths. The Chairman heard the evidence and was entitled to decide which evidence he accepted and which he did not.

[43]We do not think a Chairman can reasonably be expected to determine what kind of mental illness (if any) a Claimant suffers from, simply by reference to the WHOICD and the Claimant's evidence, in the absence of substantial medical evidence. It is possible that in certain circumstances this might be done but we are unable to fault this particular Chairman for declining to do so on the material before him. In the circumstances, although we have considerable sympathy for the Claimant this appeal must fail.