MR W HIERO v CHANGEWORK NOW LIMITED [2009] UKEAT 0474_08_0203

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2009] UKEAT 0474_08_0203

Case No Appeal No. UKEAT/0474/08

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR W HIEROAPPELLANT

CHANGEWORK NOW LIMITEDRESPONDENT

Before

His Honour Judge McMullen

Sir Alistair Graham Kbe Mr D Norman

Date 2 March 2009

[1]APPEARANCES For the Appellant MR WALDEMAR HIERO (The Appellant in Person) For the Respondent MR DANIEL BARNETT (of Counsel) Instructed by: People Asset Management Limited 121 High Street Newton le Willows WA12 9SL SUMMARY DISABILITY DISCRIMINATION: Disability When evidence was adduced in a disability case as to the effect of medication on the Claimant, an Employment Tribunal erred in failing to make a finding under DDA Sch 1 para 6(1) as to the impairment which would be present but for the medication ie deduced disability. Case remitted to fresh Employment Tribunal. HIS HONOUR JUDGE McMULLEN QC This case raises the issue of discrimination in the context of what is known as deduced disability. That is a condition corresponding to paragraph 6(1) of schedule 1 to the Disability Discrimination Act 1995 :

"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]The judgment represents the views of all three members. We will refer to the parties as the Claimant and the Respondent. Introduction

[3]It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal sitting at Reading on 23 April 2008. The Respondent was represented by an employment consultant, but today has the advantage to be represented by Mr Daniel Barnett of Counsel. The Claimant represented himself. He is Polish and has an anxiety condition diagnosed as dysphoria, which includes manifestations such as difficulty in speech and concentration. These have been put down by his medical advisers to stress in his family life, which represents itself also in his working life.

[4]He claimed that he was turned down for a job when the Respondent learned that he had a disability and contends that that contravenes the Act. The Respondent raised a number of factual issues, as well as jurisdiction points. These included the state of knowledge of the Respondent of the disability and whether the Claimant was disabled. The issue, as defined by the Employment Tribunal, was to determine whether he was disabled and whether on the facts the Act covered him. The Tribunal found against him on the first point and did not need to go on to consider the factual dispute in the case. He appeals.

[5]On the sift of his Notice of Appeal, a judge decided that no point of law arose, but on an oral hearing before Underhill P, a point of law was identified. It was not then an extant ground of appeal, but emerged at the hearing: whether or not the Tribunal had erred in its failure to approach the case on the basis of paragraph 6(1). That was referred to a full hearing.

[6]Directions were given for the adduction of notes of the evidence of the Claimant about the effect upon him of a drug he was taking for his depression. We are grateful to the Employment Judge, the two Members and the Respondent's representative for giving us their notes. It must appear odd to the Claimant that those four professionals, experienced in employment tribunals, take notes recording, in some places, completely different material of what emerged during the cross-examination.

[7]Where there is a dispute about what was said we have decided to take at its highest the note of evidence most favourable to the Claimant, since if one person has recorded his saying something, in fairness to him he said it. That approach was readily accepted by Mr Barnett. The facts

[8]The circumstances of the case were set out by the President:

"2. The Appellant is a computer specialist. In October 2007 he applied to the Respondents for a job. An offer-or, it may be, a provisional offer was made on 18 October and he was sent a standard-form medical questionnaire. In his answer to that, he ticked the 'yes' box for 'severe stress reaction' (and also, less significantly for present purposes, for 'back and neck problems'), although he ticked the 'no' box for 'depression and anxiety'. The form provides for further details to be given where one of the boxes has been ticked 'yes'; and in that box he wrote, 'About 1½ years ago, I started some treatment of stress related problems. It is stable now but I still keep taking fluoxetine. Sometimes I have back pains, very rarely'. The questionnaire was signed by him on 21 October and sent back to the Respondents, by whom it appears to have been received on 24 October. Shortly afterwards he was told that the offer had been withdrawn. 3. The Appellant brought proceedings in the Employment Tribunal claiming that the reason for the withdrawal by the Respondents of their offer was his medical condition as disclosed on the form and that that constituted discrimination contrary to the Disability Discrimination Act 1995. The Respondents defence was that they had already made the decision before they received the form, basically as a result of a review of their employment needs conducted at a meeting on 23 October. Indeed they said that even if they had known of the Appellant's condition that would not have affected their decision which was simply taken on the basis of the assessment made on 23 October. 4. The matter came before an Employment Tribunal sitting at Reading on 23 April 2008. The Tribunal considered first whether, on the evidence, the Appellant was suffering from a disability within the meaning of section 1 of the 1995 Act as amplified by schedule 1 and in the light of the guidance. The evidence as to this appears to have consisted of the Claimant's own evidence – he had made a witness statement and I gather he also gave oral evidence – together with a letter from his general practitioner dated 16 November 2007, a letter from a speech therapist dated 8 January 2008 and an undated form with the heading 'Patient summary'. The GP's letter referred to the Appellant suffering from dysphonia – that is to say, a problem with being able to get his speech out, affected by stress and also a significant past history of depression. It confirms that he is being treated by fluoxetine which is an anti-depressant. The patient summary likewise refers to depression as an 'active problem' in February 2007 and reference to fluoxetine having been prescribed in July 2007. I should also have mentioned that in the ET1 the Claimant says 'Now my health is stable but I am still on medication, fluoxetine, just because I want to avoid any future problems'. 5. The Tribunal held that the Appellant was not suffering from a disability. I need not, in a summary judgment of this sort, read the relevant paragraphs of the reasons; but, in essence, it found, on the basis of the Appellant's own responses in evidence that he had had no real problems in his previous employment with regard in particular, to the two categories under paragraph 4 of schedule 1 on which he was relying, that is to say categories (f) and (g). Any effect on his –day-to-day activities was thus minor. 6. On the basis of that finding, the Tribunal, perhaps unfortunately, did not go on to consider any of the other issues raised and dismissed the claim on that single basis."

[9]From the notes of the Claimant's approach to Fluoxetine, we extracted the following:

"The Claimant had to take it. He took it at least once daily; he had been taking it for over a year. It provided a security for him. His doctor told him to take it and prescribed it. When asked if he was dependent upon it, he said he took it all the time and his GP said it was better for him to take it."

Discussion and conclusions

[10]The Employment Tribunal found that there was nothing substantial about the adverse effect on the Claimant of dysphoria creating a speech problem and inability to concentrate. The Tribunal worked systematically through the factors to be considered in the Guidance issued by the Secretary of State in 2006 under section 3. But it failed to make a decision upon the main jurisdictional hurdle, which was under paragraph 6(1) of Schedule 1. In fairness to the Employment Judge, he spotted this point coming, for in preparation for the hearing, he had made a note that it was likely to be an issue.

[11]From the material which we have seen there was sufficient basis upon which to infer that an issue had to be determined as to the deduced effect of the disability. The material came both from the Claimant in cross-examination and from the extant material, an important feature of which was a report from his GP on 16 November 2007 diagnosing spasmodic dysphoria and referring him to a consultant psychiatrist. The condition which had been noticed six months earlier was getting progressively worse and affected his conversation, both in English and in Polish. It was stress induced.

[12]He had also been examined on 21 February 2007, regarded by the GP as a significant event when a diagnosis of depression was given. A year earlier it was regarded as a minor issue when he had stress at work. At the time, medication was provided and there is a further note of an examination on 10 July 2007 indicating that the Claimant was feeling very stressed and "needs Fluoxetine daily". That material, together with the Claimant's responses in cross-examination, indicate in our judgment a dependence upon Fluoxetine to avoid the condition presented to the GP for which she considered a consultant's opinion was appropriate. It had plainly been going on, as she records, for six months and as the records show for substantially more. So the issue of the Claimant's disability without the medication should have been explored by the Tribunal.

[13]It is, of course, not the function of an employment tribunal to create a jurisdiction where it is not asserted, but in this case, as the Employment Judge recognises, this was an issue to be raised and it might well have been cleared up by some further questions or by some further material being sought. In our judgment on this material, there was an issue to be determined and it was not.

[14]We have, with the benefit of hindsight, some support for this in a report by a different GP at the same surgery on 19 April 2008, which was given to the Respondent's Occupational Health Service Director. It was not before the Employment Tribunal. Today the Claimant is indignant that this was not included in the material at the Employment Tribunal, for he thought the Respondent was preparing a bundle. He had himself been examined by his GP for the purposes of the report to Occupational Health at least a month earlier and we agree with him that it was to be expected that this report should be in the bundle. He criticises the Respondent for negligence, but we do not hold that against the Respondent. The document was sent on 19 April and the hearing was 23 April.

[15]As Mr Barnett concedes, had this document been in front of the Employment Tribunal it would have had an important effect on the judgment. The impact of it is that the Claimant was suffering from severe stress; it caused his communication problems; they conspired to make him feel stressed and depressed; and the depression was diagnosed as moderate to severe. The doctor's opinion was this was a reactive depression in a dedicated and conscientious man. A record is made of the anti-depressant medication prescribed and taken. This will be before the Employment Tribunal on remission, as we order.

[16]The central issue, therefore, is determined in favour of the Claimant. Neither side invites remission to the same tribunal on Sinclair Roche and Temperley v Heard No. 2

[2004] IRLR 763

grounds. There is no particular utility in sending it to this tribunal which has, in any event, not completed its duties in deciding the factual issue and so we accede to the application made by both parties that this case be remitted to a freshly constituted Employment Tribunal with a direction that it consider the effect of paragraph 6 to schedule 1.

[17]A cross-appeal, which was revived upon our findings as to the disposal of this appeal, was not pursued by Mr Barnett and is dismissed on withdrawal.