THE GOVERNORS OF THE LORD GREY SCHOOL v MISS D PAVLOU [2007] UKEAT 0363_07_0111

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0363_07_0111Case No Appeal No. UKEAT/0363/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE GOVERNORS OF THE LORD GREY SCHOOLAPPELLANTMISS D PAVLOURESPONDENT
Before
His Honour Judge RichardsonDate 1 November 2007
[1]APPEARANCES For the Appellant MR J MITCHELL (of Counsel) Instructed by: Messrs SA LAW LLP Keystone 60 London Road St Albans Hertfordshire AL1 1NG For the Respondent MR T GLOVER (Solicitor) The Association of School and College Leaders (ASCL) Legal Services 130-132 Regent Road Leicester Leicestershire LE1 7PG SUMMARY Disability Discrimination – Disability The Employment Tribunal failed to give adequate reasons for his conclusion that the substantial adverse effect of the Claimant's depression was "long-term". Case remitted to the Tribunal. HIS HONOUR JUDGE RICHARDSON This is an appeal by the Governors of the Lord Grey School against a judgment of the Employment Tribunal sitting in Bedford by Chairman alone dated 18 May 2007. By his judgment the Tribunal Chairman held that Miss Pavlou had a disability within the meaning of the Disability Discrimination Act 1995 . The facts[2]Miss Pavlou became head teacher of the Lord Grey School in June 2000. She did not have a history of depression. She did have long standing back trouble. By March 2005 she was having a great deal of back pain and leg pain with limited straight leg raising. She was diagnosed to have a large central disc herniation at L4-5. Eventually in April 2006 while she was on holiday in the United States her back trouble became so bad that she required a laminectomy. In the meantime, in about January 2006 Miss Pavlou was suspended by the Governors pending an enquiry into allegations of bullying and harassment. She faced an enquiry as to these allegations and then disciplinary proceedings.[3]By September 2006 Miss Pavlou was diagnosed by her GP as suffering from significant depression and placed on anti-depressant medication. The Governors' own occupational health advisor accepted, by October 2006, that she was suffering from depression. Following the enquiry a disciplinary hearing was convened by the Governors. The hearing took place on various days between 3 October and 1 November 2006. On 1 November 2006 Miss Pavlou was dismissed. As regards disability discrimination it is Miss Pavlou's case that she was unfit by reason of her depression to attend the disciplinary hearing; that the Governors were aware of her condition; and that they discriminated against her by pressing ahead and holding the hearings in her absence and dismissing her. The issue for the Tribunal[4]For the purpose of this appeal the following are the key provisions of the Disability Discrimination Act 1995 . Section 1 reads:
"1 Meaning of "disability" and "disabled person" (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 paragraphs 2 and 6 so far as relevant read: 2.- (1) The effect of an impairment is a long-term effect if- (a) it has lasted at least 12 months; (b) the period for which it lasts is likely to be at least 12 months; or (c) it is likely to last for the rest of the life of the person affected. (2) Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. (3) For the purposes of sub-paragraph (2), the likelihood of an effect recurring shall be disregarded in prescribed circumstances. (4) Regulations may prescribe circumstances in which, for the purposes of this Act- (a) an effect which would not otherwise be a long-term effect is to be treated as such an effect; or (b) an effect which would otherwise be a long-term effect is to be treated as not being such an effect. 6.- (1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect. (2) In sub-paragraph (1) "measures" includes, in particular, medical treatment and the use of a prosthesis or other aid."
[5]In the circumstances of this case the question for the Tribunal was whether Miss Pavlou had a disability in October and November 2006. That was the period during which disability discrimination was alleged. Mr Glover, who represents Miss Pavlou, has confirmed to me today that disability discrimination is not an issue as regards any earlier period.[6]As we shall see in a moment there was no dispute that during October and November 2006 Miss Pavlou had a mental impairment, namely depression, which had a substantial effect on her ability to carry out normal day-to-day activities.[7]The question for the Tribunal was therefore whether as at October and November 2006 the effect was long term. This might be established in one of two ways. Either by establishing that as at October and November 2006 the effect had lasted at least 12 months (see paragraph 2(1)(a) of Schedule 1). Or by establishing that as at October and November 2006 the period for which it lasted was likely to be at least 12 months (see paragraph 2(1)(b)).[8]To be more precise still it is necessary to bring into consideration paragraph 6 of Schedule 1. Since Miss Pavlou was only on medication for depression from September 2006 and since it was common ground that from the time when she was on medication there was a substantial adverse effect on her ability to carry out day-to-day activities, paragraph 6(1) did not impact on the first way in which long-term effects might be established.[9]However, paragraph 6(1) might well impact on the second way in this long-term effect might be established. The correct question to ask, taking into account paragraph 6(1), is the following; as at October and November 2006 was it likely that, but for the fact that medicines were being taken to treat it, the depression would have a substantial adverse effect on Miss Pavlou's ability to carry out normal day-to-day activities for at least 12 months?[10]There is one final point to mention. At present there is some controversy as to whether and to what extent a Tribunal in determining whether a condition was likely to continue or recur can take into account events subsequent to the date at which it is relevant to assess the existence of the disability. The most recent reported case on the issue is MacDougall v Richmond Adult Community College [2007] IRLR 771 which suggests that the Tribunal generally may look at what has happened subsequently in order to assess what was likely at the relevant time. I understand that leave to appeal was granted in that case and that it is presently due to be heard in the Court of Appeal at the end of this month. The evidence before the Tribunal[11]I start with an observation. In this case whether Miss Pavlou was disabled was a major issue in the case. If she was not disabled her claim is for unfair dismissal and subject to any issue about reinstatement her compensation is limited to the statutory cap. If she was disabled her compensation is not limited. The pre-hearing review on the issue, however, took place without any prior case management discussion or direction. Given the importance of the issue it would have benefited greatly from directions and in particular from a discussion of the potential benefit of obtaining a joint expert report with carefully crafted questions for the expert.[12]As it was the Tribunal had before it two written reports (as well as various medical notes and letters) neither of which was satisfactory for the purposes of determining the question of disability as it arose in this case.[13]The first report in time was that of Dr Humphreys, a chartered psychologist, dated 19 September 2006. At the time when this report was prepared proceedings had been issued and the report was mainly prepared for the purposes of seeking an adjournment of disciplinary proceedings rather than for submission to a judge on the question whether Miss Pavlou was disabled. He did not, therefore, provide precise answers to questions relating to disability. He did however say:
"It is clear that since mid 2005 to the present day Miss Pavlou has been suffering from increasing amounts of stress and psychological disturbance and the result is a shattering of her identity that has ultimately led to psychological difficulties consistent with international classification (DSM-IV) for a major depressive episode."
[14]The second report in time is that of Dr Aldouri dated 16 April 2007. This was prepared for use at the Tribunal. At the date when she examined Miss Pavlou, Miss Pavlou was still taking anti-depressant medication; see paragraph 5.2 of her report. She found that there had been some improvement in Miss Pavlou's depression because she was still mildly depressed in mood. Her conclusion was:
"12.2 Ms Pavlou was extremely upset by the allegations and it was around August 2006 that she became clinically depressed with symptoms of low mood, poor concentration, low energy, spending a lot of time in bed, disturbed sleep rhythm, variable appetite, anxiety and panic attacks. She was seen by her GP who started her on the antidepressant drug Fluoxetine ie Prozac 20 mg daily which she has continued to take. 12.3 In my opinion Ms Pavlou had a mental impairment in August 2006 and the diagnosis is that of a Moderate Depressive Episode based on the diagnostic criteria of the lCD 10 (The WHO International Classification of Diseases Version 10) lCD 10 - F 32.1 This condition affected Ms Pavlou's memory and the ability to concentrate on tasks and I would consider the impact to have been substantial. 12.4 Ms Pavlou has been receiving treatment for her depression by her GP, as stated above she was started on antidepressant medication in September 2006 which she has continued to take. When I saw her for the purpose of providing this report, I observed a significant improvement in her mental state in response to this treatment, her mood had improved as well as her concentration. She was able to give a good history, her memory was good and she was able to remember details of dates and events. 12.5 In my opinion the mental impairment as determined by the act started in August 2006 and was substantial for about six months. 12.6 Ms Pavlou has also been referred for psychological treatment to the local psychology unit and has been placed on the waiting list for individual personal construct psychotherapy."
Although this report was prepared for the purpose of assisting the Tribunal, it took no account of schedule 1 paragraph 2 or paragraph 6(1).[15]The Tribunal Chairman was therefore placed in a somewhat unsatisfactory position. He had two medical reports neither of which directly addressed the issue he had to decide. The parties were asking him with the medical evidence in this state to take account the written evidence of the psychologist and the psychiatrist, and other medical records, to take into account the oral evidence of Miss Pavlou and reach a conclusion as to whether the effect was a long-term effect. The Tribunal's reasons[16]The Tribunal's reasons were very brief. After quoting from Dr Aldouri's report the Chairman said:
"Unfortunately Dr Aldouri does not address the question of the effect the anti-depressant medication which the Claimant is taking has or might have upon her depression. 4. Having considered the report and having heard evidence from the Claimant I find on the balance of probabilities that the Claimant's depression started certainly no later than August 2006, that it had a substantial effect upon her ability to concentrate on tasks and that if it were not for the measures being taken to treat her condition it was likely that her depression would continue for more than 12 months."
It is not easy to see from the Tribunal Chairman's reasons on what evidence he based his conclusion.[17]At a preliminary hearing of the appeal the President, Elias J, referred questions to the Tribunal pursuant to the Appeal Tribunal's practice. The questions asked for reasons on the following issues:
"a) The depression was substantial; b) The depression would have continued for more than 12 months."
The Tribunal Chairman's answer to the second was as follows. He compared the reports of Dr Humphrey and Dr Aldouri. He said that as regards to the date when depression started the reports of Dr Humphrey and Dr Aldouri were completely at odds. He said:
"(d) Faced, with this conflict of evidence I decided on the balance of probability that, given the difference in the dates upon which the two experts examined Ms Pavlou, Dr. Humphrey's assessment of the date on which the depression started was to be preferred and in consequence that the depression had continued for more than twelve months."
The appeal[18]On behalf of the Governors Mr Mitchell submits that the reasoning of the Tribunal Chairman is contradictory and cannot stand. In his original judgment the Tribunal Chairman took the date of the illness as starting no later than August 2006 and decided it had a long-term effect because it was likely to last for at least 12 months. In his subsequent reasons the Tribunal Chairman took the date of the illness as starting in mid 2005 and decided it had a long-term effect because it already lasted at least 12 months. Mr Mitchell further submits not only that the original reasons were inadequate but also that there was no evidence on which the Tribunal Chairman could have concluded, as he did, that the depression was likely to last for at least 12 months. Although the Notice of Appeal did not raise the question of substituting my own decision for the Chairman's decision Mr Mitchell says that I can and should do so.[19]On behalf of Miss Pavlou Mr Glover accepts that the Tribunal Chairman's additional reasons take a quite different point to the original reasons. He submits however that there was no error of law in the original reasons. The Tribunal Chairman had evidence from Miss Pavlou herself and knew that the depression had lasted for many months.[20]My conclusions are as follows. Firstly I consider that the original reasons given by the Tribunal Chairman fell short of the standard required to tell the parties why he reached the conclusion he did on the question whether the impairment was likely to continue for more than 12 months. It is not possible to see from the reasons how he reached this conclusion. It may be, as Mr Glover suggests, that his assessment was based on the evidence of Miss Pavlou as to what had occurred since Dr Aldouri's report was written and her continuing need of medication. But it is not possible to tell from the reasons what primary facts he found on the matter and how he reasoned from those primary facts to his conclusion.[21]Secondly, the further reasons given by the Tribunal Chairman cannot save this decision. The reasoning is different from that which is found in his original reasons. The original reasons were based on a likelihood that but for the medical treatment that the depression would continue for more than 12 months. The additional reasons were based on a supposed finding that the condition began in mid 2005 and had continued for 12 months. The additional reasons also face the difficulty that Dr Humphreys did not give a definite start date for the major depressive episode which he diagnosed. It follows from these conclusions that the reasoning of the Tribunal Chairman is not adequate to support his decision.[22]I turn then to consider whether, as Mr Glover submits, I can properly reach a conclusion in his favour on the facts.[23]The Appeal Tribunal deals only with questions of law not with questions of facts. The Appeal Tribunal can only substitute its own conclusion on a question of fact if there is only one way in which the Tribunal could decide that point. I am very far from satisfied that the Tribunal was or is bound in the absence of correct medical evidence addressing the issue to decide that but for the medication the substantial adverse effect was likely to have lasted 12 months. This requires findings about Miss Pavlou's condition and about the potency and effect of the medication which are very much a matter for evidence and assessment. That evidence and assessment is altogether lacking in the existing reasons.[24]Mr Mitchell submitted to me that I should decide this case on the burden of proof. It was for Miss Pavlou to prove her case and, he submitted, she had plainly not done so. Though I accept that it is for a Claimant to prove disability and that generally speaking medical evidence will be needed to do so, I do not think this is an appeal which could satisfactorily be decided on the burden of proof. In this case there was medical evidence on both sides which established the impairment and the substantial adverse effect. While it is vastly preferable that there should be direct medical evidence on question of long-term effect as well as other aspects of the question of disability I do not think I can go so far as to say that if the Tribunal had reasoned its decision properly it could not have reached a conclusion on long-term effect with the existing medical evidence and the evidence of Miss Pavlou. Indeed the Governors' Notice of Appeal asked only for remission not for substitution of a different decision.[25]I have already explained that the issue whether Miss Pavlou was disabled is of real importance to the future of this litigation. Both representatives have said that if it had to be remitted they are anxious that to ensure that the case is properly prepared second time around. I agree. A case management discussion is vital. Directions should be given for the preparation of evidence. Ideally a joint expert report to an expert who is asked the correct questions and understands their implications. I am unsure even after reading recent correspondence whether Dr Aldouri appreciates the legal issues. I have endeavoured to describe them earlier in this judgment subject of course to any further refinement on mature consideration at a case management discussion. The case management discussion can also consider the impact of MacDougall which may require to be taken into account in the timing of a hearing or in the setting of questions for the expert.[26]The appeal will be allowed. The judgment of the Employment Tribunal that Miss Pavlou was disabled will be set aside. The matter will be remitted to a fresh Tribunal for further consideration. The hearing listed for next Monday is taken out but Monday itself will be a case management discussion.