The Claimant, who suffered from epilepsy, was dismissed after demonstrating aggressive behaviour towards a colleague. He claimed that his behaviour was as a result of suffering a seizure at the time, which was backed up by the Consultant Neurologist. However, his claim was dismissed after the ET said that "there certainly was medical evidence that would suggest he had had an attack on that day, but that evidence was "self generated", in the sense that it was a medical opinion based on facts related by Mr Brighton himself". The Claimant appealed.

The EAT allowed the appeal. A failure to take into account important evidence, that of a Consultant Neurologist, undermined the Employment Tribunal's decision that the Claimant did not suffer a seizure on the day in question. The Employment Tribunal did not have to accept the medical evidence placed before them, but they would have had to have given it due regard. There was no indication from their Judgment that they did so. The matter was remitted to a fresh Tribunal where the aspects of it to be reconsidered were whether the Claimant suffered an epileptic seizure and whether if he did that caused or contributed to the behaviour that resulted in his dismissal.

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Appeal No. UKEAT/0165/15/DM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 27 January 2016

Before

THE HONOURABLE MRS JUSTICE SLADE DBE

(SITTING ALONE)

BRIGHTON (APPELLANT)

TESCO STORES LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR MARK GREEN (of Counsel)
Bar Pro Bono Scheme

For the Respondent
MR NICHOLAS SINGER (of Counsel)
Instructed by:
Squire Patton Boggs (UK) LLP
2 Park Lane
Leeds
West Yorkshire
LS3 1ES

DISABILITY DISCRIMINATION - Disability related discrimination

The Employment Tribunal failed to take into account important letters from a Consultant Neurologist in deciding whether the Claimant had suffered an epileptic seizure on the day of his aggressive behaviour that led to his dismissal and in deciding whether aggression and amnesia could be the result of a seizure. The Employment Tribunal did not have to accept the medical evidence but should have given it due regard.

Further, the decision of the Employment Tribunal that the Claimant did not suffer a seizure on 19 October 2012 is not Meek-compliant. Claims of disability discrimination arising from the events of 19 October 2012 remitted for rehearing before a differently constituted Employment Tribunal.

1. Mr Brighton, the Claimant, appeals from the decision of an Employment Tribunal sitting in Southampton, Employment Judge Reed and members, sent to the parties on 3 October 2014. The Employment Tribunal dismissed the Claimant's claims of unfair dismissal and claims of unlawful disability discrimination. Following a Preliminary Hearing before the then President, Langstaff J, on 14 October 2015 one ground of appeal was ordered to proceed to a Full Hearing. All other grounds were dismissed. The ground of appeal before this hearing, which is broken down by Mr Green, counsel for the Claimant, into two, originally three, forms the basis for a challenge to the dismissal of the Claimant's claim that his dismissal was an act of unlawful disability discrimination.

1. The Claimant was employed by Tesco Stores Ltd, the Respondent, from May 2007 until his dismissal for misconduct on 30 May 2013. He was employed as Community Champion. In 2009 he was diagnosed with epilepsy. In December 2012, when he was on sick leave after being suspended, he was diagnosed with an anxiety disorder. He was a disabled person for the purposes of the Equality Act 2010 ("EqA"). The Claimant had been involved in a number of incidents prior to that which ultimately led to his dismissal. As a result of using bad language and raising his voice to his manager on 9 July 2012, he was given a first written warning. On 2 August 2012 he was aggressive to his line manager, Mrs Thacker. Shortly after that, on 7 September 2012, he was again aggressive to Mrs Thacker. He was suspended and on 14 September 2012 was given a final written warning.

1. The incident that gave rise to his dismissal occurred on 19 October 2012. The findings made by the Employment Tribunal about that incident are as follows:

"36. … A charity of the year event was going to take place shortly and Mrs Thacker approached Mr Brighton for details of what he had planned. He insisted that he had put a note in her pigeon hole the previous day that explained everything but she asked him to go through it orally. Again, there was aggression and unpleasantness from Mr Brighton towards Mrs Thacker.

37. Mrs Thacker left that meeting and [Mr] Brighton also left the room in which they had met and jumped or stamped on the floor, apparently in anger or frustration as a consequence of the discussion with Mrs Thacker.

38. Mr Kinge told Mr Brighton that he could not speak to him when he was in that mood. Mr Brighton advanced towards Mrs Thacker, became very red in the face and once again invaded her personal space, coming very close to her. He behaved in a loud and aggressive way towards her, reducing her to tears. Mr Kinge was obliged to intervene."

1. The Claimant was suspended. The Employment Tribunal found at paragraph 40 that the Claimant was then signed off sick due to stress. The Employment Tribunal held :

"40 … His doctor advised him that he might have had an epileptic seizure during the events of 19 October and referred him to a consultant."

1. That visit to the doctor must have taken place before 27 October, as the Employment Tribunal held that the Claimant then lodged a grievance on 27 October. The Claimant did not return to work and on 30 May 2013 was dismissed. The Claimant contended before the Employment Tribunal that his behaviour on 19 October 2012 that led to his dismissal was caused by or arose in consequence of his disability, his epilepsy. The Respondent contended that his aggressive behaviour was not related to his epilepsy and he had not had a seizure on 19 October 2012. The Claimant put before the Employment Tribunal three letters from his Consultant Neurologist, who had originally diagnosed his epilepsy in 2009 and whom he had seen on 10 December 2012, 13 February 2013 and 31 October 2013. Mr Green for the Claimant drew attention to passages in the letters from the Consultant Neurologist that he contended were relevant to the determination by the Employment Tribunal of whether the Claimant had suffered an epileptic seizure on 19 October 2012, and if so whether his aggressive behaviour arose as a consequence of that seizure. Mr Green also drew attention to letters from the Claimant's GP that were before the Employment Tribunal.

1. The Employment Tribunal correctly directed themselves on the approach they should take to the disability discrimination claim in relation to dismissal:

"73. The primary contention in this regard was that Mr Brighton's behaviour on 19 October was indeed by reason of his epilepsy. It would follow that his dismissal was unfavourable treatment because of something arising in consequence of that disability.

74. In that context we were not considering whether Mr Godwin or indeed anyone else had reasonably assessed the situation but whether we believed Mr Brighton had had an epileptic episode on 19 October that in some way affected his behaviour."

1. The information before Mr Godwin referred to by the Employment Tribunal was what they had set out in paragraphs 64 and 65 of their Decision when considering the unfair dismissal claim. In those paragraphs the Employment Tribunal held:

"64. Our first task in that regard [that was, in the unfair dismissal claim] was to determine the precise reason for Mr Brighton's dismissal. The letter of dismissal is somewhat equivocal. Mr Brighton contended (at least at one stage) that he had suffered an epileptic episode on 19 October, that he could not recall what had happened and in any event could not be held responsible for what had happened on that day.

65. There certainly was medical evidence that would suggest he had had an attack on that day, but that evidence was "self generated", in the sense that it was a medical opinion based on facts related by Mr Brighton himself."

1. It was that the Claimant said he had suffered an epileptic episode on 19 October, which he could not recall what had happened and in any event he could not be held responsible for what had happened on that day, were particular features of those passages. Paragraph 65 contains the only reference made by the Employment Tribunal to the medical evidence placed before them.

1. In permitting a ground of appeal to proceed to a Full Hearing, Langstaff J stated at paragraph 15 that it was arguable that the Tribunal should have a proper degree of humility when considering medical evidence and have respect for professional views. The views are not binding but may be highly persuasive in many circumstances. The appeal was permitted to proceed on the basis of questioning whether the Employment Tribunal paid proper regard to the medical evidence placed before them or properly explained how they reconciled their decision with that of the doctor.

1. Mr Green broke down the ground of appeal into two propositions referred to as two grounds of appeal: first, that the Employment Tribunal erred in failing to take into account the medical evidence before them, and secondly if they did take that medical evidence into account they failed to pay proper regard to it in coming to their conclusion. It was agreed in the course of argument that grounds 1 and 2 effectively amount to the same matter: that the Employment Tribunal erred in failing to have regard to or take into account the medical evidence placed before them. Alternatively, it is said that the Employment Tribunal failed to give reasons why they rejected the medical evidence placed before them; this was a Meek v City of Birmingham District Council [1987] IRLR 250 point.

Ground 1

1. Mr Green submitted that the Employment Tribunal failed to refer to or take into account the clear opinion of a Consultant Neurologist, Dr Warner. Having seen and examined the Claimant on 10 December 2012, Dr Warner wrote a report in the form of a letter in which he said:

"Moving now to the epilepsy things had been going very well until 4 months ago since which time he has had further (complex) partial events. He has certainly had 2-3 at work when he has experienced déjà vu and one he says when he was 'out of body'. It does seem from what he and his wife say that these have occurred with specific stressful events although there is quite a lot of background stress at the minute. He had two in an hour on 19 October they have recorded in relation to interaction with a line manager. On one of these occasions (if I understood right) he left the room he was in with her and jumped and was reported to stamp although his recollection is of a complete blank. …"

1. Then, in a medical report from the Consultant Neurologist made on 19 February, having seen the Claimant on 13 February, the Consultant, Dr Warner, said this:

"I reiterate the difficulty in being able to differentiate between behavioural phenomena as being due to epilepsy or psychological abreaction but it is certainly recognised that aggression and amnestic problems can be part of a seizure, its prodrome or aftermath. …"

1. It is submitted that the Employment Tribunal failed to take into account the clear conclusion of the Consultant Neurologist that the Claimant had suffered two seizures on 19 October 2012. The evidence of the Consultant Neurologist was set out in his letter that epilepsy can give rise to amnesia and to aggression. Those passages went, it is said, to the heart of what was at issue in this part of the Claimant's claim.

1. It was submitted on behalf of the Claimant that the Tribunal also failed to take into account their own finding in paragraph 40 that the reference to epilepsy originated not from the Claimant but from his General Practitioner, who he had visited shortly after the incident on 19 October. Further, in criticising the Claimant and doubting his credibility for not commenting immediately that his behaviour was attributable to his epilepsy, it is said that the Tribunal failed to take into account that the Claimant's difficulty in recalling what happened at the time, on 19 October, may well have been the result of the seizure. In this regard the letter from Dr Warner was particularly pertinent. It was submitted that the contention that behaviour of the Claimant on 19 October was related to epilepsy was at the heart of his claim and therefore it was particularly important that the Employment Tribunal should have considered all of the evidence, particularly the medical evidence, and should have paid proper regard to the doctor's letters. This, it was said, the Employment Tribunal did not do, dismissing such evidence in paragraph 64 on the basis that the evidence was self generated, in other words, that it was based on what the Claimant had told Dr Warner.

Ground 2

1. It was submitted by Mr Green that the Employment Tribunal's Judgment is not Meek-compliant; the Employment Tribunal did not state why they did not accept the medical evidence that the Claimant had had two seizures on 19 October and that those seizures could cause aggression and indeed amnesia. The only passage in the Tribunal's Judgment that deals with that medical evidence was inadequate to explain why it was that that evidence was not accepted.

1. Mr Singer, for the Respondent, contended that the first two grounds of appeal, which are now one, amount in reality to a perversity challenge to the conclusion of the Employment Tribunal that the Claimant did not suffer a seizure on 19 October 2012. The Employment Tribunal made it abundantly clear that they did not believe the Claimant and that they considered he had made up the story that his behaviour was attributable to epilepsy after the event. Further, Mr Singer contended that the medical evidence was "subjective" and that there was no "objective evidence" to support it. In addition, counsel appeared to place some weight on Dr Warner being the treating physician and not an independent expert who would attest to his duty to the Court, although counsel was careful not to attack the integrity of Dr Warner. Mr Singer contended that in any event the letters from Dr Warner were equivocal on whether the Claimant had suffered a seizure on 19 October 2012 and whether the seizure caused aggression. He drew attention to a passage in one of the letters following the meeting with the Claimant on 10 December 2012 in which Dr Warner said:

"… To be honest it seems very confusing indeed and certainly the story he gives is somewhat mixed up in time frames even with the help of notable files of records his wife had with her. Suffice to say, he is under stress."

1. In relation to this quotation, Mr Green pointed out that it came at the conclusion of a paragraph in which the doctor was dealing with stress that the Claimant was under. In contending that the first two grounds and now one ground of appeal is really a perversity challenge, Mr Singer referred to the well known case of Croucher v RSPB [1984] ICR 604 in which the Court cautions against concluding that evidence that was before an Employment Tribunal was not taken into account by them, although it is not specifically referred to in the Judgment.

1. As to the alleged failure to give reasons for rejecting the evidence from Dr Warner, Mr Singer contended that the Employment Tribunal did give sufficient reasons for their decision. They disbelieved the Claimant that he had an epileptic seizure. As they were entitled to, they did not accept the medical evidence of Dr Warner, which was based on what the Claimant had told him. It was said it was for the Employment Tribunal themselves to assess whether the Claimant had suffered the seizure and this they did on a perfectly sustainable basis.

Ground 1

1. In considering the claim under the EqA section 15 the Tribunal must decide whether the Claimant was dismissed because of something arising in consequence of his disability, in this case his epilepsy. It is for the Employment Tribunal to come to their decision on the basis of the evidence before them. If there is relevant medical evidence, they are not bound to accept it but should give proper respect to it. At the heart of the claim that his dismissal was an act of disability discrimination were the issues of whether the Claimant had a seizure on 19 October 2012 and if so whether the seizure caused or contributed to his aggressive conduct towards Mrs Thacker for which he was dismissed.

1. Whilst I accept, as Mr Singer has submitted, that an Employment Tribunal cannot be assumed not to have taken into account evidence if it was placed before them but was not specifically mentioned in their Judgment, nonetheless the medical evidence was directly relevant to the main issues at the heart of the disability discrimination claim relating to the Claimant's dismissal. The Employment Tribunal did not set out the relevant parts of the medical evidence. Their dismissal of it as "self generated" failed to take into account that doctors take a history from their patients and that not all medical conditions have lasting, objectively observable features such as those mentioned by Mr Singer, for example a broken limb. A seizure with déjà vu features may not be what is generally regarded by the public as an epileptic fit, but the medical evidence is that it is an epileptic seizure or that it is a feature of such a seizure. In my judgment, the Employment Tribunal failed or failed properly to take into account the medical evidence that the Claimant had two seizures on 19 October 2012. Further, they failed to have regard to the medical evidence that seizures can cause amnesia and also aggression.

1. Failure to take into account important evidence, that of a Consultant Neurologist, undermines the Employment Tribunal's decision that the Claimant did not suffer a seizure on 19 October. The Employment Tribunal did not have to accept the medical evidence placed before them, but they would have had to have given it due regard. There was no indication from their Judgment that they did so.

Ground 2

1. It may be apparent from my conclusion on ground 1 that in my judgment the decision of the Employment Tribunal in concluding that the Claimant did not suffer a seizure on 19 October 2012 is not Meek-compliant. The rejection of the medical evidence in paragraph 65 is not based on a proper approach. There is nothing objectionable to a doctor giving an opinion on what he is told by a patient, nor is there anything objectionable in a treating doctor, rather than an independent expert, giving medical evidence. The Tribunal gave no other reason than that given in paragraph 65 for disregarding the important medical evidence placed before them.

1. The appeal is allowed. The matter is to be remitted to an Employment Tribunal to consider the disability discrimination claim. The aspects of it to be reconsidered are whether the Claimant suffered an epileptic seizure on 19 October 2012 and whether if he did that caused or contributed to the behaviour that resulted in his dismissal.