Appeal No. EAT/0556/04/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 January 2005
Judgment delivered on 7 April 2005

Before
MR RECORDER LUBA
MR P A L PARKER CBE
MS P TATLOW

MICHAEL FLETCHER	APPELLANT

RUSHCLIFFE BOROUGH COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

	APPEARANCES

For the Appellant	MR D BROWN 
(Of Counsel)
Instructed by:
Messrs Thompsons 
Solicitors
Price House
37 Stoney Street
The Lace Market
Nottingham NG1 1NF	

For the Respondent	

MR A HOGAN
(Of Counsel)
Instructed by:
Rushcliffe Borough Council
Civic Centre
Pavillion Road
West Bridgeford
Nottingham  NG2 5PE	

     MR RECORDER LUBA

The Issues on this Appeal

1.	The issue is whether the Employment Tribunal, from which this appeal is brought, erred in law in its determination that the Appellant was not, at the material time, a “disabled person” by reason of a mental impairment.

Factual Background

2.	From 5 July 1999 to 6 August 2002, Mr Michael Fletcher was employed by Rushcliffe Borough Council (the “employers”) as a landscape assistant with a basic working week of 37 hours (although he may have had earlier part-time employment from 1997).  He was summarily dismissed on 6 August 2002 and the reason his employers gave for that dismissal related to his capability to do his job in the light of his extensive sickness absence record.

3.	By an originating application dated 6 August 2002, Mr Fletcher complained to an Employment Tribunal that he had been unfairly dismissed and that he had been the victim of discrimination on grounds of disability.  He sought reinstatement.

4.	By their notice of appearance the employers confirmed that the reason for dismissal had been “capability”.  The employers asserted that from January 2002 until his dismissal the only condition causing Mr Fletcher to be either absent from work or incapable of full-time working was depression.  It did not admit that the depressive illness from which Mr Fletcher suffered constituted a qualifying disability such as to engage the provisions of the Disability Discrimination Act 1995.  It gave as the concise reason for dismissal:-
“... his extended absence from 1st January 2002, due to depression brought about by his perception of problems at work which either could not be identified (because they were only perceived) or which had been previously addressed but were not capable of being resolved reasonably to Mr Fletcher’s complete satisfaction.”

5.	Pending consideration of the matter by an Employment Tribunal, Mr Fletcher pursued an appeal against his dismissal to the Council’s Employment Appeals Committee but that appeal was, we assume, unsuccessful.

6.	Following a Case Management Conference (“CMC”) on 20 February 2003, the Tribunal ordered that the parties jointly instruct an expert (a consultant psychiatrist).  A Dr N.L. Holden was instructed and he prepared a written report dated 12 June 2003 and a subsequent letter of 10 November 2003 delivered in answer to further questions.  The employers having made it clear that they did not accept that the depressive illness, confirmed by Dr Holden, constituted a disability for Disability Discrimination Act purposes, a further CMC held in January 2004 directed that there be a preliminary hearing to determine that issue.  It further directed that Dr Holden’s evidence (in the form of his June 2003 report and November 2003 letter) be “taken as read”.

7.	That preliminary hearing was undertaken by an Employment Tribunal at Nottingham on 4 May 2004.  Mr Fletcher gave evidence.  The employers called no witness evidence. In accordance with the direction given at the CMC, Dr. Holden did not attend to give oral evidence. The Employment Tribunal had a full bundle of documentation including medical evidence.

8.	The Employment Tribunal decided that:-
“1. The applicant is not a disabled person by reason of a mental impairment as defined by the Disability Discrimination Act 1995.
2. The Respondent’s application for costs is dismissed.
3. The directions set out in paragraph 34 hereunder shall apply.”

9.	It subsequently delivered Extended Reasons for its decisions.  By Notice of Appeal to this Tribunal Mr Fletcher contends that the decision of the Employment Tribunal on the disability issue was wrong in law.  The employers, by Respondent’s Answer, seek to uphold the Employment Tribunal’s decision for the reasons that it gave.  There is no cross-appeal on costs nor any appeal as to the directions the Tribunal gave for the further conduct of the proceedings.  At a preliminary hearing on 21 October 2004 a differently constituted division of this Appeal Tribunal gave directions that brought the appeal on for hearing before us.

10.	We have been assisted by helpful written and oral arguments from, respectively, Mr Damian Brown for Mr Fletcher and Mr Andrew Hogan for the employers.

The Medical Evidence

11.	It is necessary to say a little more as to medical evidence concerning Mr Fletcher (who was born on 27 May 1971 and was therefore aged 31 in the summer of 2002).  There is, and was, no dispute between the parties that until January 2002 Mr Fletcher’s work, and his attendance at work, had been affected by conditions amounting to physical disability within the meaning of Disability Discrimination Act.  The Employment Tribunal had (and we do not have) medical reports prepared during that period.

12.	However, from January 2002 Mr Fletcher’s certificated absences were covered by medical certificates giving the reason for inability to work as “depression” or “depressive illness. The Employment Tribunal set out the detail of the specific certificates at para 12.6 of their Extended Reasons.

13.	Although certified by his GP as incapable of full-time work, Mr Fletcher in fact worked part-time in his post from June 2002 to August 2002.  He was seen, at the employer’s request, by a Dr Bill Holmes in June 2002 and, later in June 2002, his then circumstances were described in a letter from his GP.

14.	The Employment Tribunal summarise all this medical evidence (which they reviewed) in their Extended Reasons together with the subsequent June 2003 report and November 2003 letter of Dr Holden. We too have the reports and letters of 2002 and Dr Holden’s evidence.  We shall refer to necessary extracts in dealing with the submissions of the parties.     

The Law

15.	Section 1 of the Disability Discrimination Act 1995 provides that:-
“(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.”

16.	That composite definition of the relevant disability requires an applicant to establish:-

(1)	A mental impairment;

(2)	An adverse effect on his ability to carry-out normal day-to-day tasks;

(3)	That the adverse effect is substantial; and

(4)	That the adverse effect is long-term.

17.	In relation to each of those component parts of the definition of “disability” for the purposes of the Act, Schedule 1 provides some assistance in relation to their interpretation.  Paragraph 1 of the Schedule deals with the meaning of “impairment”, paragraph 2 with the meaning of “long-term” and paragraph 4 with “normal day-to-day activities”.  The requirement that impairment be “substantial” is dealt with in paragraph 5.  Finally, paragraph 6 of Schedule 1 deals with how medication or other treatment is to be taken into account in applying the definition.

18.	Both a code of practice and published statutory guidance are available to employment tribunals to assist, where appropriate, in applying that statutory rubric to the facts of a particular case.

The Employment Tribunal’s decision in this case

19.	In their well-structured decision on this preliminary issue, the Employment Tribunal’s Extended Reasons set out in turn the relevant law (paragraphs 7 - 10), their findings of primary fact (paragraph 12), an account of the submissions of the parties (paragraphs 13 -16) and their conclusions (paragraphs 17 - 31).

20.	In summary, their conclusions were that Mr Fletcher did have a mental impairment falling within Schedule 1 paragraph 1 of the 1995 Act in that he suffered from a clinically well-recognised mental illness.  Further, the Tribunal concluded that the requirement that the condition be “long-term” was fulfilled, the evidence being that the depressive illness had developed in late 2000.  No dispute arises as to these conclusions by the Tribunal.

21.	Against the background of those conclusions, the Tribunal then examined the list of prescribed day-to-day activities set out in Schedule 1 paragraph 4 of the 1995 Act.  These are:-

“(a) Mobility
(b) Manual dexterity
(c) Physical co-ordination
(d) Continence
(e) Ability to lift, carry, or otherwise move everyday objects
(f) Speech, hearing or eyesight
(g) Memory or ability to concentrate, learn or understand
(h) Perception of the risk of physical danger.”

22.	The task of the Tribunal was to determine whether there was any adverse effect, by reason of his depressive illness, on Mr Fletcher’s ability to carry out these day-to-day tasks.  They concluded that no adverse effect had been established in relation to the matters listed at (a), (b), (c), (d), (e), (f) or (h).  Again, their conclusion in that respect is not disputed.

23.	That left only Schedule 1 paragraph 4(g) in contention between the parties.  The task for the Tribunal, therefore, was to establish whether or not there had been any substantial adverse effect on Mr Fletcher’s “memory or ability to concentrate, learn or understand”.

24.	The Employment Tribunal reviewed (at paragraph 27 of their Extended Reasons) Mr Fletcher’s own evidence as to the effects of the depressive illness upon him and the medical evidence on that matter.  Having done so, and having looked again at the definition in Schedule 1 paragraph 4(g), they set to one side the limb of paragraph 4(g) related to the ability to “learn or understand” and concentrated entirely on the assertion that there may have been an effect on Mr Fletcher’s “memory or ability to concentrate”.

25.	In that regard the material evidence before them came from two sources.  Firstly, there was Mr Fletcher’s own evidence of the impact upon him of the depression from which he suffered.  That evidence is given in his Witness Statement and was supplemented by his oral evidence in the course of which he was cross-examined.  The thrust of that evidence was that the depressive illness caused Mr Fletcher to become forgetful and unable to effectively concentrate.  Examples are given in his written evidence and were repeated by him in his oral evidence.  

26.	The Tribunal’s findings on this critical issue are gathered together at paragraph 29 of their Extended Reasons.  That paragraph forms the main focus of the challenge brought by way of appeal.

The Submissions of the Parties

27.	Mr Damian Brown, developing an argument helpfully set out in his written Skeleton, which in turn reflected the various heads in the Notice of Appeal, criticises the conclusions of the Tribunal on a number of grounds.  In his submissions before us, however, he appeared to place most emphasis upon his assertion that, in relation to the Tribunal’s treatment of memory or ability to concentrate, the Tribunal had made inconsistent, or illogical, findings in the light of the actual content of the medical evidence before them.  Additionally, he asserted that the Tribunal had improperly focused on Mr Fletcher’s methodology for dealing with the effects of his illness rather than upon the effects themselves.  Finally, he emphasised that the Tribunal ought to have directed itself to the “deduced effects” of Mr Fletcher’s illness, i.e. it should have considered the extent of the impairment that he experienced with “memory or ability to concentrate” taking out of account the medication that he was receiving to assist him with his depression.  He concluded his submissions by indicating that not only was the Tribunal below plainly in error but that the position was sufficiently clear for this Appeal Tribunal to substitute a decision that Mr Fletcher was a person disabled by reason of his depressive illness within the meaning of section 1 of the 1995 Act.

28.	In his cogent and helpful written and oral submissions, Mr Andrew Hogan for the employers reminded us that the function of this Tribunal was strictly limited.  He submitted that the Employment Tribunal had dealt with the matter before them “impeccably” and that they had given fully reasoned conclusions based on the material before them, certainly sufficient to sustain the decisions which they made.  His submissions as to the correct approach to be taken to the adequacy of a Tribunal’s reasoning, based on Meek v City of Birmingham District Council [1987] IRLR 250 and English v Emery Reingold [2002] 1 WLR 2409 needed no further elaboration and, indeed, were the subject of concession by Mr Brown.

29.	Mr Hogan submitted that the issues now sought to be canvassed before this Appeal Tribunal had been fully in play before the Employment Tribunal and had been adequately considered by them in the clear reasons that they had set out.

30.	His response to each of these specific criticisms outlined in the Notice of Appeal was that the issue had been dealt with, either directly or indirectly by the Employment Tribunal in its reasoning.

Our conclusions

31.	This appeal essentially collapses to a single issue.  That is whether this Employment Tribunal did or did not correctly determine in law the question of whether there were substantial adverse effects on Mr Fletcher’s “memory or ability to concentrate” as a result of his depressive illness.

32.	In their Extended Reasons (at paragraph 28) the Tribunal summarise the most direct evidence in that respect, i.e. the evidence of Mr Fletcher himself.  His evidence was that the impact upon him of his depressive illness was such that he could not rely on his short-term memory at all.  As a result he needed to make lists of the most basic functions of daily life in order to undertake them.  His evidence recounts that he had to make detailed lists of the entire range of ordinary tasks that he would have to undertake in any given day for fear that he would otherwise forget to undertake them altogether.  In relation to the necessity, for example, for his son to take his school bag with him to school, Mr Fletcher recounted that it was necessary for him to deal with that by ensuring that the school bag was always left in his car.  As to his ability to concentrate, and any impairment of that, Mr Fletcher gave evidence of the difficulty he had in remembering the names of people whose names he had previously known and his inability to recall what he was taking about if interrupted in the course of a conversation or a telephone call.  The Tribunal make no clear finding as to whether or not they accept this evidence from the applicant as to the extent of the impact of his depression.  Indeed, they do not address at all the further evidence given by him as to the effect of what impact the depressive illness had on days on which his depression is especially bad. He says as follows in his Witness Statement:-
“When I am feeling particularly depressed, even things that I have listed go out of the window - I just want to be left alone.  On those days it takes extra time and effort for me to carry out normal tasks.  Everything then is a real effort.”

33.	It is right to remind ourselves, at this point, that Mr Fletcher’s general practitioner had, in course of the first half of 2002, regularly found that Mr Fletcher was incapable of work as a result of his depressive illness.

34.	It is plain from paragraph 29 of the Tribunal’s Extended Reasons that they were not satisfied that Mr Fletcher’s evidence in this regard properly reflected the situation as it had been in 2002, in the period particularly leading up to his dismissal at the beginning of August 2002.  They contrast, for example, his description as given in his evidence with the fact that he was, during at least the first part of 2002, able to undertake administrative tasks, for example, in relation to the listing and organisation of tree preservation orders.  In particular, they note that the seemingly extensive nature of the impacts described in the evidence of Mr Fletcher was not recounted in the contemporaneous medical reports.  They say (paragraph 29):-
“The Tribunal notes from the evidence of Dr Holden that neither his original report, nor his response to subsequent questions, included any reference to the Applicant’s day-to-day activities in relation to memory or ability to understand being adversely affected and this is so notwithstanding the fact that in effect he was asked the question twice ... and it being specifically pointed out to him that he must ignore any measures the Applicant is taking to minimise adverse effects such as medical treatment ...Given Dr Holden’s experience, and the fact that he interviewed the applicant, the Tribunal has reasoned that it is unlikely that he omitted to include in his report matters related to him by the Applicant if they were reported to him.  If they were reported to him, and Dr Holden somehow or other overlooked them, it is surprising the point was not clarified prior to the hearing.  It was not, nor was it suggested to the Tribunal that the points had been mentioned to Dr Holden and that somehow they had been overlooked.”

35.	We accept Mr Brown’s submissions in relation to that passage.  In particular, we accept that he is right to describe the Tribunal here as having found that there was an inconsistency between the Mr Fletcher’s evidence as given to the Tribunal and the contemporaneous medical evidence.  That inconsistency is not explained, in the Tribunal’s view, by Mr Fletcher and in those circumstances they are not satisfied that his evidence, as given before them, correctly reflects the impact of his depressive illness as it was in 2002.

36.	That, in our judgment, being a correct analysis of the situation Mr Brown next took us to various extracts from the relevant and contemporaneous medical evidence to substantiate his proposition that the question of an adverse impact on Mr Fletcher’s memory had indeed been mentioned in those reports.

37.	Most particularly, he took us first to the written report of Dr Holden dated 12 June 2003, based on an interview which had taken place on 22 May 2003.  In particular, on page 12 of his report, Dr Holden wrote this:-
“Mr Fletcher stated that his concentration was “not too bad”, but that his memory for short term recall was poor.  He described the need to write things down as a reminder.  He considered that he was persistently tired.  He feels irritable.  He stated that he can maintain his motivation for the sake of his children but that he is not personally motivated.  His interest levels are low.”

38.	At page 14 of the report Dr Holden wrote:-
“In my opinion Mr Fletcher’s depression has caused him impairment particularly in the area of memory or ability to concentrate, learn or understand.”

39.	Dr Holden concludes that page of his report with the recognition that the question of whether the impairment is “substantial” or not is ultimately a matter for the Tribunal but he records:-
“However, it is my opinion, on the balance of probabilities, that the impairment was substantial in the sense that he became obsessive and was struggling to remember, needing to make notes to remind himself of his duties.”

40.	It might be thought that in the light of those statements it was no surprise that Mr Fletcher had not considered it necessary to probe Dr Holden with further questions or to seek further elucidation of his report.  However, the employers had taken that step and in their own letter to Dr Holden of 13 August 2003, they asked:- 

“Did the applicant’s condition of depression have an adverse effect on his day-to-day activities apart from work?
and
What duties at work was the applicant incapable of carrying out?”

41.	In answering the second of those questions in his reply, Dr Holden writes:-
“He found his short-term memory to be reduced, such that he had to make lists and reminders.  He was persistently tired and unmotivated.”

42.	In answer to a fifth question, as to what modifications would have been required to the applicant’s work schedule to enable him to remain in employment, Dr Holden wrote:-
“Modifications to help his ability to remember ...”

43.	On that material, Mr Brown submitted, in our judgment correctly, that there was an inherent inconsistency in the Tribunal’s findings.  They appear to have found that Mr Fletcher’s direct evidence to them was not, in particular in relation to the impact on his memory and his need to make lists in order to remember even the most basic functions, was simply not corroborated by the medical evidence.  As we have indicated, the medical evidence might be thought to fully substantiate his direct evidence to the Tribunal.  In our judgment no tribunal properly directing itself, on the basis of this medical evidence, could have reached the conclusion that this Tribunal did reach; that is to say that the evidence before them of Mr Fletcher, as to the impairment of his short-term memory, was not born-out in anything in the medical evidence before them.

44.	This conclusion alone is, in our judgment, sufficient to require this appeal to be allowed. Mr Hogan, for the employers, made a bold attempt to dissect the evidence of Dr Holden and to attribute it to descriptions of the list-making and diary-keeping that Mr Fletcher had undertaken during his periods at work in 2002.  Both parties made submissions to us in particular as to the changing tenses used by Dr Holden in the text at page 12 of his report.

45.	However, the subject-matter of this appeal is the reasoning of the Employment Tribunal.  As we have indicated, we are satisfied that the Tribunal were quite wrong, in paragraph 29 of their Extended Reasons, to find that nothing in the evidence of Mr Fletcher as to impact on his memory, or ability to understand, was reflected in the medical evidence before them.

46.	It is necessary only to deal relatively briefly with the other grounds upon which the Employment Tribunal’s decision was attacked.  We are satisfied that Mr Brown, for Mr Fletcher, had adequately made out a complaint that the Tribunal misdirected itself in law in its conclusions on the relevance of the practice of making lists or notes described in the evidence of Mr Fletcher.  Certainly the Tribunal were right to direct themselves that, in the ordinary course of events, any individual may make a note or a list of items in order not to forget them.  What this Tribunal plainly failed to appreciate was that the evidence before them was that Mr Fletcher’s list-making, and note-making, and his extensive use of a “whiteboard” at home were his coping mechanisms to attempt to deal with the effects of his seemingly disabling condition.  There was no suggestion that prior to the onset of his current depressive illness he had had to make lists and notes the extent that his evidence suggested had become necessary.  There appears to be no examination by the Tribunal of the extent and nature of this note-taking which, on the face of Mr Fletcher’s own evidence, goes far beyond the simple reminder note that any other individual might ordinarily make in the course of everyday activities.  Moreover, we accept Mr Brown’s submission that the Tribunal does not address at all the impact on Mr Fletcher of his disabling condition when it is at its worst, as we have already set out in an extract from his evidence.

47.	We do not accept the other criticisms of this Tribunal’s decision made in the Notice of Appeal.  We are not of the view that the Tribunal failed to apply relevant authorities or failed to have regard to any relevant guidance.  We are not satisfied that the Tribunal undertook the wrong general approach to its functions.  Nor do we accept that the Tribunal erred in overlooking medical evidence in relation to other aspects of Dr Holden’s report, or that it failed to take account of the cumulative effects of Mr Fletcher’s various disabling physical conditions when added to his mental illness.  Finally, we do not believe that the Tribunal were in error in their approach to deduced effects, or as to the appropriate period for the consideration of the question before them.  

48.	In the event, therefore, we are satisfied that the Tribunal have erred in only two respects but in two important respects.  That is to say in their misrepresentation of the medical evidence as not corroborating Mr Fletcher’s own subsequent evidence as to impact on his memory and concentration and in their failure to grasp the difference in nature between the evidence given by Mr Fletcher as to his note-taking and list-making as compared to the form of memory-jogging note that any member of the population might from time to time prepare.

49.	For these reasons the appeal will be allowed.  We have considered carefully whether this is an appropriate case in which we might substitute our own decision for that of the Tribunal, not least to save the parties further trouble and expense.  However, in our view, that would not be the proper course on the material before us.  We have not had the advantage of seeing Mr Fletcher give his evidence or be examined upon it.  There may be reasons why that evidence is not acceptable.  For the reasons we have identified, its inconsistency with earlier medical evidence is not a basis for its rejection.  It seems to us, therefore, that this matter must be remitted to be considered by a differently constituted Employment Tribunal. They must determine the issue of whether, by reason of his mental illness, Mr Fletcher is, and was, a disabled person. Indeed, at an early CMC the Employment Tribunal may wish to consider listing that matter to be determined at the same time as, or immediately prior to, its consideration of the remaining issues in Mr Fletcher’s application.