The claimant was dismissed and claimed that he had been discriminated against by reason of his disability. The ET ruled that he was not disabled, concluding that even if there was a mental impairment there was simply insufficient evidence to support the assertion that it had a substantial long term adverse effect on the claimant’s abilities to carry out normal day to day activities. They also did not believe that even in circumstances where such an impairment was long term and substantial and adverse, it was prevalent at the material time or that it could well happen to recur.

The EAT first allowed a new piece of evidence to be brought which was a letter from the claimant's GP. They then concluded that the Employment Judge had erred in focusing on a joint report on disability through mental impairment which did not reflect the more liberal approach under the DDA 2005 and the subsequently decided J v DLA Piper [2010] IRLR 936.
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Appeal No. UKEAT/0397/10/ZT

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5 November 2010

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

MR K RAYNER (APPELLANT)

(1) TURNING POINT

(2) MRS E RAMPLING

(3) MS M MACPHERSON (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant MR PETER O'BRIEN (of Counsel) (Non-practising)

For the Respondents MS SUZANNE PALMER (of Counsel)
Instructed by:
Messrs DWF LLP Solicitors
Centurion House
129 Deansgate
Manchester
M3 3AA

DISABILITY DISCRIMINATION – Disability

The Employment Judge erred in focusing on a joint report on disability through mental impairment which did not reflect the more liberal approach under the DDA 2005 and the subsequently decided J v DLA Piper. Remitted to a different Employment Judge for rehearing.

1. This case is about the definition of disability as applied to a mental impairment. I will refer to the parties as the Claimant and the Respondents.

1. This is an appeal against a judgment on a pre-hearing review by Employment Judge Palmer sitting alone at Bury St Edmunds, registered with reasons on 17 May 2010. The Claimant was represented by Mr O'Brien, a non-practising barrister who today continues to represent him. The three Respondents are represented by Ms Suzanne Palmer, different counsel having appeared at the hearing.

1. The issue was whether the Claimant was disabled. The Judge decided that he was not. The Claimant appeals against that aspect of the judgment. Other parts of the case were directed to go forward to a hearing which on unfair dismissal. His Honour Judge Peter Clark considered the matter fit for expedition and sent this point to a full hearing.

1. I will state the facts briefly because this case will go back to a different Employment Judge for a hearing.

1. The Claimant was engaged for some time by the First Respondent, a small organisation dealing with mental health. He contends that he is disabled and it is agreed that the reference period for assessing disability is May 2007 to 31 March 2008. Orders were made by Employment Judge Cole for determining this issue so that a jointly instructed medical expert should give an opinion. Professor Robert Edelmann, a psychologist, has written a 40-page report. It is common ground that he is a distinguished expert in the field. He was also asked a number of written questions.

1. The Claimant was the subject of suspension and disciplinary action. He was dismissed and reinstated but for all intents and purposes ceased to work for the First Respondent on 31 March 2008. The Claimant had demonstrated through the medical records produced to Professor Edelmann by his GP Dr Ali a number of episodes affecting his mental health. These were analysed by Professor Edelmann and he gave his opinion.

1. The conclusions reached by the Employment Judge were as follow:

"25. It is my conclusion that on the facts before me today the Claimant cannot satisfy the burden of proof which is upon him to show an impairment under Section 1 of the DDA 1995. He is relying upon a mental impairment and to a great extent therefore I must be guided in medical matters by the opinions put forward by Professor Edelmann. I am not convinced that the complaints advanced by the Claimant during the period which is material in any way constitute a mental impairment, the evidence does not support this. What is more difficult is whether he experienced a past impairment and I remain unconvinced that this was necessarily the case despite the fact that there had clearly been considerable difficulties for the Claimant in the past. Therefore I find no impairment and the Claimant's claim in disability must fail.

26. For the avoidance of doubt however I also conclude that even if there was a mental impairment there is simply insufficient evidence to support the assertion that it had a substantial long term adverse effect on the Claimant's abilities to carry out normal day to day activities. The facts do not support this.

27. Dealing with the aspect of long term effect under Section 2 of the Disability Discrimination Act 1995 it is my view that by the material time, that is May 2007, the Claimant would not have been able to demonstrate that he had sustained the necessary 12 months of effect in order to qualify.

28. There is little known evidence to support the assertion that the effects would have been substantial and adverse on the Claimant's abilities to carry out normal day to day activities. In this I must be guided by the medical report.

29. Further, I also do not believe that even in circumstances where such an impairment was long term and substantial and adverse, it was prevalent at the material time or that it could well happen to recur. For these reasons the disability discrimination claim must be struck out against all three Respondents."

1. Of importance to these proceedings is the finding at paragraphs 26 and 29. They together constitute what was put firmly as a knockout blow by Ms Palmer in her written and oral submissions: whatever may be wrong with the Judge's findings in relation to mental impairment, the firm finding that there was no substantial effect on day-to-day activities cannot be overcome. The rest of the case was academic in light of that finding, she argued.

1. On behalf of the Claimant it was contended that the judgment was perverse, which means that that finding about substantial day-to-day activities not being affected could not stand and should be set aside. The principal argument relates to the treatment of past disability and current disability. As to the past, it was contended that the Claimant had demonstrated through his medical records episodes when he would have qualified to have been affected by the mental impairment set out in schedule 1 to the Disability Discrimination Act 1995.

1. It is also contended that the approach to that mental impairment is materially altered by the change in the law following the judgment in Morgan v Staffordshire University [2002] IRLR 190 and the change in the statute in 2006.

1. It is further contended that the approach of the Employment Tribunal should now be radically changed in light of the judgment of Underhill (President) and Members in J v DLA Piper [2010] IRLR 936, not extant at the time of the hearing before Employment Judge Palmer.

1. The Claimant contends that there is a new piece of evidence relevant to these proceedings, which is a letter from Dr Ali to Mr O'Brien representing the Claimant dated 12 March 2009 which should be admitted to today's proceedings.

1. On behalf of the Respondents it is contended, notwithstanding the academic nature of the earlier arguments, that the judgment in J v DLA Piper does not change the effect of the Judge's approach, that it is consistent with that approach and that the findings he made were open to him.

1. I find it unfortunate that Professor Edelmann was not specifically directed in relation to the law relating to mental impairment under the Disability Discrimination Act 1995 as it was amended. Schedule 1 para 1(1) was repealed by the Disability Discrimination Act 2005. To some extent, Mr O'Brien accepts some responsibility since the questions which were drafted to the expert did not make that clear.

1. It is plain to me that Professor Edelmann was focusing on a medical diagnosis. He talked about the criteria set out in the relevant diagnostic materials, the Diagnostic and Statistical Manual of Mental Disorders published in the United States and known as the DSM-IV. These contain criteria for major depressive episode and major depressive disorder recurrent. The standard, therefore, that Professor Edelmann was examining was a higher standard than is now required under the amended Act. The more liberal approach is to ask whether there has been a mental impairment without the necessity for the Claimant to prove that it related to a clinically well-recognised condition. The Employment Judge did know that because it was pointed out to him.

1. The principal material for the decision was Professor Edelmann's report, the joint expert. In addition, however, the Claimant gave evidence upon which he was not challenged. He gave evidence of the episodes which had occurred for him.

1. The approach of employment tribunals to the difficult issue of depression amongst workers has now been very substantially clarified by J v DLA Piper. The guidance now enables an employment tribunal to consider this difficult area with some clarity. The Employment Tribunal, of course, was required to apply the law as it was at the time. But in my view the Employment Judge was not sufficiently aware of the standard applied by Professor Edelmann and it being a higher standard than required here. The Employment Judge did not have the benefit of the analytic approach of the Employment Appeal Tribunal relating to symptoms presented by different forms of mental condition (anxiety, stress, depression and so on) and the language which is loosely associated with that. The examples given by the President (for example at paragraph 45) are useful examples which should be borne in mind when a tribunal is considering the outward boundaries of this condition.

1. The upshot is that there are errors in this approach. The first is in respect of the treatment by Professor Edelmann (and thus in the evidence available to the Judge) as to the material date. The parties agreed what the index dates were (above) but Professor Edelmann deals with the position of the Claimant at various stages, in particular at the time he was being examined. I cannot say that the Employment Judge correctly analysed the effect of the date of the condition. The medical notes from Dr Ali which Professor Edelmann presented in his report indicate what appear to me to be conditions of a depressive illness and include the effects of the illness on him at work.

1. It is at this stage that I turn to the additional evidence. Rare it is that new evidence is admitted on appeal. No steps were taken by Mr O'Brien to ensure that this material went through the sift provided in the order of Judge Clark. I decided, having heard Mr O'Brien and Ms Palmer, to read the letter before making a final decision and have decided that this material should be admitted. The letter was not produced earlier because the agreed vehicle for the medical evidence was to be Professor Edelmann.

1. This letter does not correspond to the formal protocols for an expert but does shed light on the medical records extracted by Professor Edelmann and put into his report. It adds material relating specifically to the conditions required under schedule 1, that is that there is a condition which provides an impairment with substantial adverse effects in the long term on normal day-to-day activities. Dr Ali talks about clinical depression and stress at work as "adverse effects". These were in direct answer to questions posed to him and draw upon records kept by Dr Ali in September 2007, February 2008, March 2008 and 5 June 2008, which he summarises as being evidence of having adverse effect on the Claimant's life and work.

1. Only a thin trace of that appears in the records produced for Professor Edelmann and some records are not there. In particular, Professor Edelmann does not expressly deal with some attestation of the Claimant's medical condition which is in a sickness-from-work form. The record I have in mind is included in his report from a record dated 5 February 2008 indicating a doctor's statement for one month's stress at work. The Employment Judge noted that there had been a signing-off certificate for the Claimant for the whole period from 5 February to 31 March 2008. The date of 5 February corresponds to the note in the GP's notes reported by Professor Edelmann. However, in addition there is a medical certificate which I take it was before the Employment Judge and which indicates anxiety and depression. It was signed on 13 February 2008 by Dr Ali and advises him to stay off work from a date which I infer is 13 February until 31 March 2008.

1. It seems to me, if a condition of anxiety and depression is diagnosed by a GP which causes the GP to advise the patient to refrain from work, that that is in itself evidence of a substantial effect on day-to-day activities. The Claimant would have been at work and his day-to-day activities include going to work. If he is medically advised to abstain and is certified as such so as to draw benefits and sick pay from his employer, that is capable of being a substantial effect on day-to-day activities. It is of course a matter of fact for the Employment Tribunal to determine.

1. The Claimant himself gave evidence of the effect on his day-to-day activities, which were difficulties in concentrating and sleeping. Given that he was not challenged on those, it seems to me unfair for it to be said that they had no substantial effect upon him. He gave that evidence in order to demonstrate the effect on his day-to-day life of his condition. A decision was taken not to cross-examine him on that.

1. In my judgment, it is correct to say that the Judge was perverse in his finding that there was insufficient evidence to support his contention that there was a substantial day-to-day effect by reason of his condition. I also form the view that the failure by Professor Edelmann to locate precisely the effect during the index period means that the Judge may not have focused on the correct period of time. There is substance in the argument that the prior episodes may together constitute some sort of linkage. The test for that is found in J v DLA Piper and the examples cited by the President at paragraph 46 to which I have drawn attention.

1. For those reasons this judgment should be set aside. The evidence I have admitted today fills the criterion which is necessary for this material to be adduced on appeal. It is a summary of the material which was already before the Employment Tribunal through the reports of the GP but it contains slightly more. It does focus on what was a critical issue in the case: adverse effects on the Claimant's life and work. It was just that the material should be put before me without disturbing the orders made by Employment Judge Cole at a previous directions hearing for the adduction of material.

1. I do not know why this letter was not contained in the notes sent to Professor Edelmann since other correspondence to and from Dr Ali in respect of people with interests in the Claimant, such as the clinical psychologist and the nurse, are in the papers but this is not. It does reflect a contemporaneous view by the treating physician of the Claimant's condition. As was said in J v DLA Piper, where the report of a consultant may be inconclusive, this material may be very relevant. For myself, I hold that a GP treating a condition such as depression over a long period of time is in a very strong position to give an authoritative view of materials relevant to the assessment of disability under the Act and sometimes may be in a better position than a consultant examining a Claimant on one occasion only. Those are matters of assessment for an Employment Tribunal and that is what will now happen.

1. I direct that the judgment is set aside and that there be a fresh hearing before a different Employment Judge. Neither side argued for it to go back to the same Judge. There is no utility in keeping that position because this was a one-day case and it would unfair to ask the Judge to consider this matter again in view of the finding I have made about it. I direct that the letter from the GP be before the Judge. If either party wants it to go to Professor Edelmann, it can.

1. Two things are wholly excusable. Firstly, this case on appeal has been illuminated by the judgment in J v DLA Piper which was not available to the Judge. Secondly, the approach to Professor Edelmann's report on close analysis has concentrated on what might be described as old-style mental impairment rather than new-style post-2005 Act mental impairment. The former requires a more rigorous clinical diagnosis to which Professor Edelmann made constant reference by way of his citation of the criteria.