Appeal No. UKEAT/0390/09/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 November 2009
	               Judgment handed down on 14 January 2010

Before
HIS HONOUR JUDGE BIRTLES
(SITTING ALONE)

MRS EILEEN GRANT	APPELLANT

McKECHNIE PLASTIC COMPONENTS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MICHAEL GRANT
(Representative)	
For the Respondent	MR EDWARD BROWN
(of Counsel)
Instructed by:
Messrs Hammonds LLP Solicitors
2 Park Lane
Leeds
W Yorkshire
LS3 1ES

SUMMARY
DISABILITY DISCRIMINATION:  Disability
PRACTICE AND PROCEDURE:  Case management
In a case involving the question of whether the Claimant was disabled the Employment Judge did not have regard to SCA Packaging Ltd v Boyle [2009] IRLR 746.  As all the facts had been heard in evidence the EAT applied Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812 and upheld the judgment of the Employment Judge that the Claimant was not disabled. Ancillary grounds of appeal relating to the hearing were also dismissed.

HIS HONOUR JUDGE BIRTLES 
Introduction
1.	This is an appeal from the reserved judgment of Employment Judge Shulman sitting in Leeds on 21 May 2009.  The reserved judgment was sent to the parties and entered in the register on 21 July 2009.

2.	At a pre-hearing review Employment Judge Shulman dismissed the Claimant’s claim in respect of disability discrimination on the basis that in one particular she was not a disabled person.  

3.	The Appellant was represented by her husband, Mr Michael Grant.  The Respondent was represented by Mr Edward Brown of Counsel.  I am grateful to both representatives for their written and oral submissions.  

History
4.	The Appellant was an employee of the Respondent from 1997 until 18 August 2007 when she resigned and claimed constructive unfair dismissal and disability discrimination.

5.	A pre-hearing review was held at the Leeds Employment Tribunal on 5 June 2008 to determine the issue of disability and Employment Judge Burton found in favour of the Appellant.

6.	The Respondent appealed against this decision and the matter was heard by the Employment Appeal Tribunal on 19 September 2008.  In his reserved judgment HHJ Pugsley agreed that the Appellant’s mental impairment commenced in January 2007 but referred one matter back to the Employment Tribunal to resolve, namely the “long term” question of the impairment.

7.	A further pre-hearing review to consider the matter referred back was held at the Leeds Employment Tribunal on 21 May 2009 and in a reserved judgment sent to the parties on 21 July 2009 Employment Judge Shulman dismissed the Appellant’s claim of disability discrimination.

The Employment Tribunal Judgment
8.	The judgment of Employment Judge Shulman appears at EAT bundle pages 1-6.  The judgment begins by setting out the terms of the remission, the issues and sets out the law.  In relation to evidence the judgment says this:

“6.1 The Claimant gave evidence before us.  The Claimant wished to tender witness statements of three other witnesses who gave evidence before Judge Burton.  Those witnesses were not present at this hearing and without the ability to test those witnesses on the one issue in this hearing the Tribunal invited the Claimant to proceed without a reading of those witness statements.  
6.2 The Respondent called no oral evidence but did tender a letter dated 11 May 2009 from Dr M S Alexander, a Consultant Psychiatrist, whose original report dated 1 May 2008 (“the opinion”) was before Judge Burton and which incorporated the General Practitioner’s report, together with short supplementary psychiatric reports dated 15 and 18 May 2009.” 

9.	Both Mr Grant and Mr Brown are agreed that the first part of the third sentence of paragraph 6.1 is wrong as a matter of fact.  Of the witnesses whose witness statements were in the bundle Mr Grant, Mrs Grant and a Mrs Palmer were present and willing to give evidence.  In the event only Mrs Grant did give evidence.

10.	The Employment Judge found the following facts:

“7. The Tribunal having carefully reviewed all the evidence (both oral and documentary) before it finds the following facts (proved on the balance of probabilities):
7.1 The Claimant was employed by the Respondent as a Telephonist/Receptionist.  The Respondent manufactures plastic components.  
7.2 In 2006 the Claimant started experiencing problems arising out of renovation work being done in reception.
7.3 The Claimant ran into confrontation with her line manager and went off sick with work-related stress in October 2006 but note the agreed fact at paragraph 5 above.  
7.4 Following a grievance appeal the Claimant was expecting to return to work.  She last received treatment for work-related stress from her General Practitioner of 21 August 2007.  She could not remember indicating that she wished to return to work (see 11, 4.1.7 of the opinion).
7.5 The Claimant had experienced no prior mental health problems.
7.6 The Claimant made no comment before this Tribunal as to assertion in the opinion (Section 11 4.1.3 B.) (2nd)) that the Claimant did not have an impairment on a continuing or recurrent basis.
7.7 The Claimant accepted the opinion and supplemental reports as being accurate.  Accordingly where the Tribunal refers to the opinion in this judgment whether as facts or as part of the determination of the issues the Tribunal accepts the opinion.”

11.	The reference in paragraph 7.3 to the agreed fact at paragraph 5 refers to the agreed fact that the time of any alleged disability commenced in January 2007.  

Employment Tribunal Determination of the Issues
12.	The Employment Tribunal said this:
“8.1 It is clear that the Tribunal can only consider, in accordance with Richmond, the evidence available at the time of the unlawful discrimination, which was in August 2007.  
8.2 At that time the parties agree that the work-related stress had only subsisted since January 2007.
8.3 As it had not lasted at least twelve months the sole consideration for this Tribunal is whether it was likely to last at least twelve months from January 2007.  
8.4 The Claimant accepts the accuracy of the opinion.  That is plain as to a number of factors.  
8.5 It is clear from the extract from the General Practitioner’s notes contained in the opinion that or about August 2007 the Claimant was intending to return to work.  
8.6 At paragraph 11, 4.1.3 B. (2nd) of the opinion Dr Alexander states that the Claimant does not have an impairment on a continuing or recurrent basis.
8.7 As to the likelihood of the condition lasting for twelve months the expert medical evidence is that Dr Alexander sees no reason why she should not continue to be a loyal, faithful and productive worker providing her working environment was suitably sorted out (see the opinion 11 4.1.3 C).  
8.8 Dr Alexander says that the Claimant did not suffer from mental impairment which would categorise her as disabled from 27 October 2006 which is before the time the parties accept the disability commenced until 18 August 2007 (see the opinion 11, 4.1.6).  
8.9 In the supplemental report dated 18 May 2006 Dr Alexander accepts that he should only have regard to information on or before end August 2007 and that being the case he finds that the Claimant’s impairment would not have lasted beyond January 2008 (1.6.1.3 and 2).
8.10 Since the Claimant accepts the opinion of Dr Alexander, that is the principal medical evidence which was before the Tribunal when it was considering whether the period for which the impairment lasted was likely to be at least twelve months.
8.11 The onus is on the Claimant to establish that the impairment was likely to last in excess of twelve months.  In the absence of that evidence before the Tribunal the Tribunal can only conclude that on the evidence before it the Claimant has failed to establish that her mental impairment had a long term adverse effect on her ability to carry out normal day-to-day activities and in the circumstances the Claimant’s claim alleging disability discrimination is hereby dismissed.”

The Amended Notice of Appeal
13.	The amended Notice of Appeal is at EAT bundle pages 10-18.  It is has been supplemented by Mr Grant’s helpful skeleton argument and his oral submissions.  The Respondent’s answer is at EAT bundle pages 19-27.  It is has been supplemented by Mr Brown’s helpful skeleton argument and his oral submission.

The Law
14.	Before turning to the grounds of appeal it is necessary to set out the relevant statutory provisions and authorities.  

15.	Section 1 of the Disability Discrimination Act 1995 as amended provides as follows:
“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.
(3) Guidance
(A1) The Secretary of State may issue guidance about matters to be taken into account in determining whether a person is a disabled person.
(1)	Without prejudice to the generality of sub-section (A1) the Secretary of State may, in particular, issue guidance about the matters to be taken into account in determining –
(a)	….
(b)	Whether such an impairment has a long term effect.”

16.	Schedule 1 paragraph 2 provides as follows:
“Long-term effects
2.-(1) The effect of an impairment is a long-term effect if 
(a) It has lasted at least twelve months;
(b) The period for which it lasts is likely to be at least twelve months; or
(c) It is likely to last for the rest of the life of the person affected.”

17.	The guidance referred to above was published in 2006.  The relevant guidance referred to by Employment Judge Shulman is found in Part 2 Section C.  Section C1 sets out the provisions of Schedule 1 paragraph 2(1).  Section C2 says this:
“Meaning of “likely”
C2. It is likely that an event will happen if it is more probable than not that it will happen.  
C3. In assessing the likelihood of an effect lasting for twelve months, account should be taken of the total period for which the effect exists.  This includes any time before the point of which the alleged incident of discriminatory behaviour which is being considered by the adjudicating body occurred.  Account should also be taken of both the typical length of such an effect on an individual, and any relevant factors specific to this individual (for example, general state of health or age).  
C8. Likelihood of recurrence should also be considered taking all the circumstances of the case into account.  This should include what the person could reasonably be expected to do to prevent the recurrence.  For example, the person might reasonably be expected to take action which prevents the impairment from having such effects (e.g. avoiding substances to which he or she is allergic).  This may be unreasonably difficult with some substances.  In addition, it is possible that the way in which a person can control or cope with the effects of an impairment may not always be successful: for example, because a routine is not followed or the person is in an unfamiliar environment.  If there is an increased likelihood that the control will break down, it will be more likely that there will be a recurrence.  That possibility should be taken into account when assessing the likelihood of a recurrence.”

18.	In Richmond Adult Community College v. Elizabeth McDougall [2008] IRLR 227 Pill LJ said this:
“The statute plainly contemplates that, for a disability within the meaning of the Act to exist, an impairment having a “long-term adverse effect” must be established (Section 1 of the 1995 Act).  The starting point is to ask whether the effect of the impairment has lasted at least twelve months (Schedule 1, paragraph 2.1 (a)).  Sub-paragraphs (b) and (c) at paragraph 2(1) introduce a predictive element.  It is not necessary to establish that the effect has lasted for twelve months if it is established that it is likely to last for at least twelve months or for the rest of the life of the person affected (no doubt to deal with terminal conditions).
22. Paragraph 2(2) provides a further opportunity to establish a long-term effect.  Where the effect of the impairment has ceased, it may still be treated as having a long-term effect if the effect is “likely to recur”.  By the use of the word “likely” in each of these situations a predictive element is introduced into the test of whether the effect of an impairment is a long-term effect.  The words should bear the same meaning in paragraph 2(2) as in paragraph 2(1)(b).
23. The 1995 Act makes unlawful discriminatory acts of employers when making decisions about employees.  Employers must not discriminate against employees who are disabled within the meaning of the Act.  If they are to avoid the sanctions which may result from such discrimination, they must not discriminate against disabled people.  They must first decide whether the employee is disabled within the meaning of the Act.  They do that by applying a series of tests which, in an appropriate case, includes that in paragraph 2(2) of Schedule 1.  That involves a prediction on the available evidence as would, in a different situation, a decision under paragraph 2(1)(b) or (c).  Other decisions which employers are required to take to avoid falling foul of the Act, for example, the duty to make adjustments under Section 4A of the Act, do not arise for decision in the present case.  
24. The decision, which may later form the basis for a complaint to an Employment Tribunal for unlawful discrimination, is inevitably taken on the basis of the evidence available at that time.  In my judgment it is on the basis of evidence as to circumstances prevailing at the time of that decision that the Employment Tribunal should make its judgment as to whether unlawful discrimination by the employer has been established.  The central purpose of the Act is to prevent discriminatory decisions and to provide sanctions if such decisions are made.  Whether an employer has committed such a wrong must, in my judgment, be judged on the basis of the evidence available at the time of the decision complained of.  In reaching that conclusion, I have regard to the Guidance.  I agree with the conclusion of Lindsay J and Elias J with their analysis of the Guidance.”
Sedly LJ and Rimer LJ agreed.

19.	In SCA Packaging Ltd v Boyle [2009] IRLR 746 the House of Lords decided that the word “likely” in the Disability Discrimination Act 1995 (as amended) should be construed in the same way throughout the statute.  It decided that the word “likely” should mean “more likely than not” - see the judgments of Lord Hope at paragraph 4; Lord Rodger at paragraphs 41-42; Baroness Hale at paragraph 69-70; Lord Brown at paragraph 78 and Lord Neuberger at paragraph 81.

20.	It will immediately be noted that this meaning of the word “likely” is different to that in Part 2 paragraph C2 of the Guidance.  The judgment in the Opinions of the House of Lords in the Boyle case were handed down on 1 July 2009 which was after the hearing before Employment Judge Shulman on 21 May 2009 but before the reserved judgment was sent to the parties on 21 July 2009.  He was apparently unaware of it.

The Amended Grounds of Appeal
21.	Ground 1: Flawed basis of medical reports and conclusions of the Tribunal.

22.	Mr Grant submits that in the light of the decision in the Boyle case both Dr Alexander and Employment Judge Shulman proceeded on the wrong basis in taking the meaning of “likely” to mean “if it is more probable than not that it will happen” rather than “more likely than not”.  Mr Brown accepts that this is correct.

23.	The question which then arises is what follows from that?  Mr Brown accepts that Employment Judge Shulman did not have the benefit of the Guidance in Boyle but submits that as a matter of law its decision should stand as its findings were such as to meet the standards established in Boyle in any event.  I am invited to follow the well known guidance in Dobie v. Burns International Security Services (U.K.) Ltd [1984] ICR 812 at 818 F-H where Lord Donaldson MR said this:
“Once you detect there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the Tribunal is plainly wrong, but whether it is plainly and unarguably right notwithstanding that misdirection.  It is only if it is plainly and unarguably right notwithstanding the misdirection that the decision can stand.  If the conclusion was wrong or might have been wrong, then it is for an Appellate Tribunal to remit the case to the only Tribunal which is charged with making findings of fact.”

24.	In this case the findings of fact are complete.  They are the findings of fact made by Employment Judge Shulman on 21 May 2009.  The error of law is the failure to apply the Boyle test which post-dated the hearing.  The findings of fact cannot be challenged in the Employment Appeal Tribunal unless there is no evidence to justify the finding of fact.  That is not this case.  The facts essentially are these:
1.	By her ET1 the Claimant declared herself to be suffering from “work-related stress” at the time of the alleged discrimination.  Pursuant to a Case Management Order, the parties jointly instructed Dr Alexander to examine the Claimant.  In his report Dr Alexander concluded that:
(a)	On the basis of the Claimant’s medical records and his examination, the Claimant suffered from “work-related stress”, a description which does not constitute a mental impairment for the purposes of the Disability Discrimination Act: Appeal bundle pages 84-87;
(b)	Further, even if it were such an impairment, there was substantial and adverse effect on the Claimant’s ability to carry out day-to-day activities; EAT bundle page 86;
(c)	In any event, the Claimant suffered from the condition for a period of only 10 months (October 2006-August 2007) and therefore the condition was not “long-term”: EAT bundle page 87;
(d)	However, the Claimant at the time of the examination (but not at the time of the alleged discriminatory act) was suffering from “Mixed Anxiety and Depressive Disorder”: EAT bundle pages 84-87.
2.	In his final report dated 18 May 2009 Dr Alexander said this:
“Based on the information that is available on or before the end of August 2007, in my opinion, Mrs Grant’s impairment would not have lasted beyond January 2008.  This opinion is based on the observation that there is no record of any impairment in the medical records of Mrs Grant that came to my attention, up to August 2007.  Work-related stress is not an impairment.”

(EAT bundle page 98)

25.	That was all the material before Employment Judge Shulman on 21 May 2009 when he found that the Claimant accepted the reports of Dr Alexander: Judgment paragraphs 7.7, 8.4 and 8.10.  He accepted that evidence.  It was the only medical evidence before him.  As Baroness Hale made clear in the Boyle case at paragraph 70:
“It has often been emphasised in the cases that the burden of proving disability rests with the applicant, who must bring medical evidence to establish this.”

26.	For these reasons I am satisfied that the decision of Employment Judge Shulman is “plainly and unarguably right notwithstanding that misdirection”: Dobie v Burns International Security Services (UK) Ltd, supra.

Ground 2
27.	No further requirement for the Tribunal to consider whether paragraph 2(1)(b) of Schedule 1 of the Disability Discrimination Act was met.  

28.	Following questioning from myself Mr Grant withdrew this ground of appeal.

Ground 3: Failing to allow or consider legitimate, relevant, previously presented evidence to be admitted
29.	Mr Grant submitted that Employment Judge Shulman should have read the witness statements of Mrs Grant, Mrs Palmer, his son and himself as three of those witnesses (not his son) were present and to have heard that evidence which had been heard by Employment Judge Burton at the previous pre-hearing review.  Mr Grant submits that this was a procedural irregularity which amounts to an error of law.  

30.	In fact Mrs Grant did give evidence before Employment Judge Shulman.  It is clear that Employment Judge Shulman was mistaken in paragraph 6.1 of his judgment when he said that the other witnesses were not present at the hearing.  That is agreed.  However, it is a matter for a party to call evidence it wishes to be heard and Mr Grant did not press the point.  In his own words to me:
“We agreed to proceed.  I did not ask and would not ask for an adjournment only because of the witness point.”

31.	I am aware of the difficulties that someone who is not a legally qualified representative has at employment tribunals in presenting a case.  However, there cannot be a separate set of rules for someone who is a legal representative and someone who is a lay representative.  Employment Judge Shulman was entitled to take a view that he did not feel it necessary to hear evidence other than that of Mrs Grant, particularly in view of the fact that a similar view had been taken by Employment Judge Burton in a letter to both parties dated 2 April 2009: EAT bundle page 64.  Mr Grant did not press the point so there was no ruling by Employment Judge Shulman that the witnesses should not be called.  Finally, having read those witness statements myself I am satisfied that no prejudice to the Appellant could arise because (a) Employment Judge Shulman was aware of the findings of Employment Judge Burton in relation to the witness statements; (b) the statements did not address the predictive exercise of the likely long-term effect of the impairment.

Ground 4: The Tribunal wrongly allowed supplementary psychiatric reports to be presented
32.	Mr Grant submits that the supplementary reports were received by his wife and himself on 18 May 2009 by email.  That was three days before the hearing.  At the hearing he objected to their production but was overruled.  Clearly part of the second supplementary report was used by Employment Judge Shulman because it is referred to in paragraph 8.9 of his judgment.

33.	The Respondent’s answer to this is that if Mr Grant wished to call Dr Alexander so that he could be cross examined he could either have applied before the hearing for an adjournment and a witness summons for Dr Alexander or made the same request at the hearing itself.  Mr Grant frankly admitted to me that he did not apply for an adjournment to call Dr Alexander.  

34.	In my judgment Employment Judge Shulman was entitled to look at the further supplementary reports of Dr Alexander not least because he was the original joint expert instructed by the parties to produce a report on Mrs Grant.  Mr and Mrs Grant had three days before the hearing to assimilate the two short supplementary reports (7 pages: EAT bundle pages 92-94 and 96-99) and could have made a request for an adjournment before or at the hearing as well as a request for a witness summons for Dr Alexander to attend for cross examination.  He did neither.  Whilst I can well understand the circumstances in my judgment there was no error of law by the Employment Judge in admitting the supplementary reports of Dr Alexander.

Conclusion
35.	For these reasons the appeal is dismissed.