Appeal No. UKEAT/0544/12/KN
UKEAT/0545/12/KN

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

	At the Tribunal
	On 19 December 2012

Before
HIS HONOUR JUDGE BIRTLES
(SITTING ALONE)

JOHANNA RUSSELL	APPELLANT

(1) FOX PRINT SERVICES LLP
(2) KEVIN STANTON	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS S KING
(Representative)
Free Representation Unit	
For the Respondents	MR A LINE
(of Counsel)
Instructed by:
CW Law Solicitors Ltd
North Quay 
Temple Back
Bristol
BS1 6FL

SUMMARY
DISABILITY DISCRIMINATION - Disability
PRACTICE AND PROCEDURE - Imposition of deposit

Appeal against a finding that the ET finding that Appellant was not disabled was a finding open to it on the evidence which included the Appellant’s witness statement as well as medical evidence.

Deposit order quashed on the ground that there was no adequate reasoning explaining why the ET considered the Appellant had little reasonable prospect of success: Meek applied. 

HIS HONOUR JUDGE BIRTLES
Introduction
1.	This is an appeal from the Judgment and reasons of Employment Judge Vowles sitting at Ashford on 10 October 2012. The hearing was a pre-hearing review, the Judgment and reasons were sent to the parties on 16 October 2012. For the purposes of this appeal Employment Judge Vowles decided first that the Claimant was not a disabled person within the meaning of section 6 of the Equality Act 2010 at the relevant date of 13 January 2012: that was the date of her dismissal by the Respondent. The complaints of disability discrimination were therefore struck out.

2.	Second, the complaint of unfair dismissal had little reasonable prospect of success and a deposit order in the sum of £200 was made. Other orders were made but only those two orders are before me today. I note that at the hearing before the Employment Judge no oral evidence was heard but he had a witness statement from the Claimant as well as a bundle of documents.

3.	Today the Claimant, as I shall call her, is represented by Ms Sinead King from the Free Representation Unit and the Respondent is represented by Mr Alexander Line of counsel. I am grateful to both advocates for their written and oral submissions. I particularly want to compliment Ms King on her excellent skeleton argument and her oral submissions.

Disability - The factual background
4.	The Employment Tribunal Judge made findings of fact at paragraphs 5 to 16 and 24 to 27 of his reasons.  He said this:
“5	The Claimant commenced employment as an account manager with the 1st Respondent on 20 September 2011.
6	On 11 October 2011 the Claimant’s father was diagnosed with terminal lung cancer.

7	On 28 November 2011 the Claimant went absent on sick leave with depression and returned to work on 1 December 2011.
8	On 5 December 2011 the Claimant went absent on sick leave again with depression and returned to work on 4 January 2012.
9	On 4 January 2012 the Claimant requested time off to make provision for her terminally ill father and that request was granted.  The Claimant did not return to work thereafter.
10	During the period 5 to 13 January 2012 the Claimant was absent on sick leave with depression.
11	On 9 January 2012 Mr Kevin Stanton, Managing Director, invited the Claimant to a meeting on 13 January 2012.  The Claimant said she would attend.
12	In an email on 12 January 2012 the Claimant asked Mr Stanton: “Can you let me know the purpose of this meeting and its potential outcomes?  If it is your intention to terminate my employment could you please let me know this or will we be discussing what we can do to manage my return to work?”
13	Mr Stanton replied: “The company has not made any decision about your employment, tomorrow is purely to find out what is going on and where we go”
14	The Claimant replied: “I’m quite upset regarding my father’s rapid deterioration and the thought of losing my job is just compounding this, which is why I wanted someone to drive and remain with me for the meeting.  Is there any chance at all that you and anyone else would be able to come here or meet up in my village, where I can walk to, or for us to do this by phone?”
15	Mr Stanton replied that if she did not attend the meeting at the work place then the meeting would proceed in her absence. 
16	On 13 January the meeting took place without the Claimant and a letter was sent to the Claimant on the same day which included the following: “In speaking on Monday we both agreed the need to meet and discuss your current absence as you yourself were becoming required to deal with more with the personal circumstances affecting your father and that was impacting on us as an organisation.  In the three months of your probationary employment you have been absent more times than you have been present at work which has made it very difficult for us.  On Monday morning you gave no indication that you were not in a position to drive.  You did ask to have someone present to take notes and we of course advised you of your rights in these circumstances.  It then seemed that the circumstances changed, you then informed me that you were not sure you were in a fit state to drive or attend the meeting and I could drive to somewhere near you to meet, which was not acceptable.  It all becomes somewhat confusing as to what the actual reason for you not attending as you could have organised a taxi. … We feel that it is only right to end your employment as of today.  It has been difficult to reach this decision as you were an excellent employee when you were at work.  All monies owed, including your notice of one week and P45 will be forwarded to you.  We do hope you are able to be in a position where you will be able to return to work at some point in the future.  It is quite possible there might still be opportunities within Fox Print.” 

5.	The Employment Judge then referred to the relevant law and at paragraphs 22 to 27 made further findings of fact when he said this:
“24	The Claimant’s GP record disclosed that she had suffered from depression 2005.  There was an entry in her records dated 19 July 2008, “Depression resolved, no meds at 01.04.06.” The next relevant record is for 29 July 2011, -“Stress at work”.
25	In a health questionnaire, also dated 29 July 2011, completed for the purposes of her employment with the 1st Respondent, the Claimant stated that she had never suffered from stress or depression and she did not consider herself to have a disability and that she did not have any physical or mental impairment that affected her daily living.  She signed the questionnaire under the statement, “I hereby confirm that the statements are given correct”
26	In her ET1 claim form the Claimant stated, “I became depressed as a consequence of my father’s illness.  I was first signed off by my GP on 28/11/11 but I only took four days off and did not hand in the GP’s sick note.  On 5/12/11 I was signed off again by my GP for significant depression and prescribed Citalopran for this.
27	In her statement the Claimant she said - “As Dr Packham says in his letter of 7 February, I presented to him with my symptoms on 28 November 2011 and was first diagnosed with anxiety and then week later on 5 December I presented again and this time he diagnosed significant depression.”

6.	As I say, having summarised the law and the submissions of both parties, the Employment Judge went onto reach these conclusions:
“28	Based upon the above facts, I find the Claimant was a disabled person by reason of depression and GAD with effect from 28 November 2011.
29	I have considered the question of recurrence but consider the time lapse between 2005 and November 2011 to be as such duration that these can be considered as two distinct illnesses at different points in the Claimant’s life, rather than recurring episodes of the same impairment.
30	Additionally, I do not consider the GP entry on 29 July 2011 to be sufficient evidence of the presence of disability at that time.  In Dr McLaren’s report dated 8 October 2012 he said - “In the medical record, there is a reference to her presenting with stress at work on 20 July 2011.  She was prescribed the beta blocker propranolol which is used for the treatment of anxiety and this was probably the first manifestation of her recent generalised anxiety disorder.” I find however that this is in conflict with the Claimant’s statements in the health questionnaire, the ET1 claim form and her witness statement.  I have therefore relied upon the Claimant’s own accounts.
31	I then considered what was the likelihood, as at 13 January 2012, of the depression/GAD lasting for at least 12 months.
32	In answer to the question “On 13 January 2012, how long was the bout of depression likely to last?”. Dr McLaren replied, “This is difficult.  With treatment, a bout of depression would be expected to resolve within three months of starting treatment.  Without treatment there was a significant risk that the depressive episode would become chronic.” (Report of 3 October 2012).
33	Not satisfied with this reply, the Claimant requested further clarification and Dr McLaren replied, “The Claimant continued to suffer significant symptoms of the depressive episode at least until the time of assessment on 31 July 2012. On the balance of probability, the depressive episode was likely to have been prolonged as a consequence of the interaction between the depression, her grief reaction for the death of her father and the financial pressure arising from the loss of her job.” (Report of 8 October 2012).
34.	I find that, as at 13 January 2012, the disability had not lasted for at least 12 months, it was not likely to last for at least 12 months and it was not likely to last for the rest of the Claimant’s life.  Dr McLaren’s clarification was based upon his assessment on 31 July 2012 when he had the benefit of hindsight and was able to assess the reason why the depressive episode had been prolonged until that date. Importantly, he does not resile from his earlier statement that, as at 13 January 2012, the bout of depression would be expected to resolve within 3 months of starting treatment.
35	I have also taken account of the letter dated 7 February 2012 from the Claimant’s GP which included the following:-
“On 20 January I saw her again, when she told me that her employers had terminated her contract and she was tearful and low.  I referred her on to our secondary care psychiatric services at that point and signed her off for a further two weeks with significant depression.  It is very difficult to say what the long-term prognosis is here, she really doesn’t know how she is going to react when her father eventually dies although I expect there will be an element of relief.  She has only recently started to benefit from the anti-depressant and it is very early days to know how long it is going to take for this improvement to continue.  I think that she feels that she has been unfairly treated and would like therefore to put the record straight, which will also help with her self-esteem.”
36	There is nothing in that statement which counters Dr McLaren’s prognosis of the condition being expected to resolve within 3 months of starting treatment.
37	I have taken account of the fact that as at 13 January 2012, the Claimant was expecting the imminent death of her father.  Although Dr McLaren, with the benefit of hindsight, said that the grief reaction contributed to the prolongation of the depressive episode, that could not have been predicted as at 13 January 2012.  Indeed Dr McLaren did not mention it in his earlier report of 3 October 2012 and the GP indicates that he expected the opposite effect, i.e. an element of relief. […]
39	I find that although the Claimant was a disabled person as at 13 January 2012, it did not involve an impairment that was likely to last for at least twelve months as at that date and therefore did not qualify as a disability within the meaning of Section 6 Equality Act 2010.
40	The complaints of discrimination arising from disability and breach of the duty to make reasonable adjustments therefore have no reasonable prospect of success.”

7.	It is important, I think to note that what clearly the Employment Judge did take into account was that Dr McLaren had given in his report of 8 October 2012 another factor apart from the death of the Claimant’s father which was the financial pressure arising from the loss of her job. That of course was not the situation as at 13 January 2012.

8.	There are two grounds of appeal in respect of the disability claim; the first, ground 1, is a failure to provide sufficient reasons for departure from medical evidence. Ms King has referred me to the well know authority of English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 and Mr Line has referred me to Meek v City of Birmingham City Council [1987] IRLR 250.  The Meek test is well known. Much of the passages cited to me in English v Emery Reimbold go to the need for a trial judge to give reasons when conflicting expert evidence is given before him whereas in the case of a lay witness it is sometimes, although not in my judgment, wise to simply say that one prefers the evidence of witness A to witness B.  

9.	In the case of experts then there is clearly a duty to provide reasons as to why the trial judge prefers one witness to another. However, that is not this case. What the Employment Judge had in front of him were the materials contained in the supplementary bundle. They were Dr McLaren’s psychiatric report of 6 August 2012 and further answers provided by him on 3 October 2012 and 8 October 2012. He also had the Claimant’s health questionnaire which she had filled in prior to her employment with the Respondent and her witness statement together with exhibits.

10.	In my judgment, the Employment Judge had ample evidence before him on which he could reach his conclusion that the Claimant was not a disabled person from July 2013 and did not become so by reason of depression and GAD until 28 November 2011 when she presented herself to her GP and was so diagnosed.

11.	The Employment Judge clearly set out the material facts which I have recorded. He correctly cited the legal test relating to disability and he asked himself the correct questions. He found that the critical assessment by Dr McLaren which, as I say, was dated many months after the operative date, 13 January 2012, was written with the benefit of hindsight. In any event, there was material from the Claimant herself which did not suggest that she was disabled from July 2012. In my judgment the reasons given by the Employment Judge make it quite clear why he reached his conclusion: that is what Meek requires - that the Claimant knows why she has lost on that issue.

12.	Ground 2 relates to the wrong approach to the question of continuing impairment.  Ms King submits that although both counsel referred the Employment Judge to the case of SCA Packaging Ltd v Boyle [2009] UKHL 37, the Employment Judge did not refer to that Judgment in his reasons. That in itself is not an arguable ground of appeal.

13.	Ms King quite properly goes further and submits that if one analyses the language used by the Employment Judge in paragraphs 33, 34 and 38 of his reasons, he has in fact applied a balance of probabilities test and not the SCA Packaging Ltd v Boyle test. Both counsel have referred me in their skeleton arguments to what SCA Packaging v Boyle said and there is no dispute that it represents a correct statement of the law.  

14.	Looking at the evidence as a whole, which I have set out, I am satisfied that the Employment Judge did apply the correct test in this case. The effect of the evidence as at 13 January 2012, the date of dismissal, was that it could not be predicted for how long the symptoms would last without medication but with medication they would be expected to resolve within three months of the date of prescription. The Appellant was prescribed Citalopran on 5 December 2011 when she was diagnosed by her GP with significant depression.  

15.	The Employment Judge was entitled to take the view that Dr McLaren’s report was written with the benefit of hindsight and Dr McLaren had taken on board a factor which was not material at 13 January 2012 which was the effect of the dismissal and the financial pressure arising from the loss of the Claimant’s job. I can see no criticism of the Employment Judge in taking that view of the report and the subsequent correspondence which he had before him.  In my judgment it was a permissible option for the Employment Judge to decide that as at 13 January 2012 the impairment had not listed for a 12 month period and there was no real possibility that the symptoms would recur in the future such as that they were likely to last for a 12 month period or the remainder of the Appellant’s life.

16.	I turn to the second issue which is the issue of the deposit. In a separate deposit order the Employment Judge made an order that the Claimant should pay a deposit of £200 because her claims relating to unfair dismissal had little reasonable prospect of success. His short grounds for doing so are as follows:
“1	I find that the complaint of automatically unfair dismissal has little reasonable prospect of success.
2	I consider it is unlikely that the Claimant will be able to persuade a Tribunal at a full merits hearing that her absence from 4 January to 12 January 2012 was a reasonable amount of time under Section 57A [sic] [Section 57(1)(a)] of the Employment Rights Act 1996 so as to bring her absence within the scope of that section.
3.	Even if she did, I think it unlikely that a Tribunal would find that the reason, or principal reason, of the dismissal was related to the Claimant having sought or taken time off under Section 57A [sic] [Section 57(1)(a)], in view of the reasons given in the dismissal letter referring to the fact that in the three months of her probationary employment she had been absent more times than she had been present at work.”

17.	Ms King puts forward two separate grounds of appeal; the first is that the Employment Judge took the wrong approach  to the assessment of reasonable time and the second is hat he took the wrong approach to the relationship between dismissal and time off for family leave.  Both counsel have put before me skeleton arguments and authorities which go into some considerable detail about the law relating to section 57(1)(a) and it is an area of law and there is little authority but despite Ms King’s submission, I do not consider it appropriate in an appeal against a particular deposit order to offer guidance to Tribunals about the correct approach to section 57(1)(a) and the issues that she raises in her skeleton argument.

18.	The position with this case is that there has been the preliminary hearing review and there is to be a contested hearing with oral evidence being given by both sides together with, no doubt, other documentation, such as the contract of employment which I have not seen, and it would be wrong in the absence of any Tribunal findings of fact and Tribunal conclusions on the correct approach to section 57(1)(a) of the Employment Rights Act 1996 to make any statement as to the correct approach that a Tribunal could follow.

19.	The appeal in respect of the deposit order can be dealt with very shortly. The answer, in my judgment, is that the reasons given by the Employment Judge for making a deposit order, albeit only of £200 is that they are simply not Meek compliant.  

20.	As I say, at the preliminary hearing review there was no live evidence although the Employment Judge had in front of him a witness statement from the Claimant, she did not give evidence, she was not cross-examined and he had little documentation in relation to the dismissal other than the dismissal letter.  That itself is open to perhaps up to three possible interpretations as to what lies behind it.  No witness for the Respondents gave evidence or was cross-examined.  This, I suspect, is the case where the reasons given for dismissal will be challenged as to their validity for the principal reason for the dismissal.  There is also an interesting argument I think to be run as to why the Respondent’s attitude to the Claimant taking time off under section 57(1)(a) changed when the initial director went on holiday and Mr Stanton took over. These are all issues which can only be resolved at a full hearing. I am completely unable to understand how the Employment Judge reached his conclusions in paragraphs 2 and 3 of his grounds. I have no doubt that Ms Russell does not understand either.

21.	For that reason, and that reason alone, I allow the appeal on grounds 3 and 4 and quash the deposit order of £200.

Conclusion
22.	The result therefore is the appeal is dismissed on grounds 1 and 2 and the claims of disability discrimination remain dismissed.  The appeal in respect of grounds 3 and 4 are allowed and the deposit order is quashed.