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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Brennan v Bedford Borough Council [2002] EWCA Civ 639 (30 April 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/639.html Cite as: [2002] EWCA Civ 639

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR RECORDER UNDERHILL QC)

		Royal Courts of Justice Strand, London WC2 Tuesday, 30th April 2002

1. LORD JUSTICE PILL: This is an application for permission to appeal against a decision of the Employment Appeal Tribunal, Mr Recorder Underhill QC presiding, given on 21st November 2001. They dismissed an appeal by the present applicant, Mr J F Brennan, from a decision of an Employment Tribunal held at Bedford, the decision being promulgated on 16th January 2001.
2. A preliminary point was taken in proceedings brought by the applicant against his former employers, the Bedford Borough Council. The unanimous decision of the Employment Tribunal was that:

"... the Applicant does not suffer from a disability within the terms of section 1 of the Disability Discrimination Act 1995. His claim under that Act fails and is dismissed."

3. Other aspects of the applicant's claim are to proceed before the Employment Tribunal.
4. The central point made by the applicant is that the Employment Tribunal relied upon a witness, Professor Seager, who was not a reliable witness. Mr Brennan understands, I know, that it is the Employment Tribunal which is the fact finding body. There can be an appeal to the EAT and to this court only on a point of law. The applicant submits that the evidence of Professor Philip Seager, in a report of 15th August 2000 and in oral evidence, is so plainly unreliable that reliance upon it amounted to an error of law.
5. The applicant puts his case very strongly and says that Professor Seager knowingly gave false testimony. He submits that there are so many omissions and misstatements in the report that that is the only conclusion which can properly be reached; Professor Seager was intentionally wrong in the diagnosis he made that the applicant was not suffering from such depression as would constitute an illness bringing the applicant within the definition of a disabled person in section 1 of the 1999 Act.
6. These allegations were put, and I am confident put as persuasively then as they are now, by the applicant in person to the Employment Appeal Tribunal. They have considered the allegations in considerable detail. It is tempting simply to say that I agree with their analysis and, their analysis being sound, this is not a case when any error of law by the Employment Tribunal can arguably be shown. The applicant accepts that the matter was considered with care by the Employment Appeal Tribunal. I have to say that I agree with their reasoning. Clearly, some of the points, if not all the points, put to me today were put to them, and they concluded on both issues, including the second issue of deduced effect, that the Employment Tribunal were entitled, as the fact finding tribunal, to make the decision they did.
7. Before me, Mr Brennan has analysed the report of Professor Seager by reference to other documents in the bundle which he has helpfully prepared. It is clear, if I may say so, that Mr Brennan is a man of high intelligence. He has been employed with the proposed respondents as Public Relations and Marketing Manager, and he plainly was successful in his work and in his career generally.
8. As well as Professor Seager, four former colleagues of the applicant were called before the Employment Tribunal, and there is every indication that they considered the evidence carefully. I accept that reliance upon Professor Seager, who was Emeritus Professor of Psychiatry at Sheffield University, was very considerable. I am not persuaded that it is arguable that his evidence is so plainly wrong that the Employment Tribunal have made an error of law in accepting it.
9. I bear in mind the points made orally this morning. One of them is that the witness referred to the WHO classification of 1992 and did so inaccurately. For example, in the statement of symptoms of depressive disorder quoted by Professor Seager, one, disturbed sleep, is left out. Reference is made to the classification itself, with its reference to depressive episodes, F32 Mild Depressive Episode, F32.1 Moderate Depressive Episode, and other classifications. The applicant submits that references by Professor Seager are wrong and his report is plainly unreliable.
10. The classification's significance was accurately referred to by Professor Seager in this way, at page 88 of the bundle:

"It should be noted that the ICD-10 is not a textbook of psychiatry but is designed to offer a world-wide guide to psychiatric symptoms for use in judging and comparing morbidity in different countries and to ensure consistency in operational definitions used in research programmes."

11. Professor Seager also said on the same page:

"Differentiation between mild, moderate and severe depressive episodes rests upon a complicated clinical judgment that involves the number, type and severity of symptoms present."

12. And:

"In assessing any person, whether at work or off sick, one would look to symptoms complained of and signs of abnormal functioning, to offer sign-posts to illness and leading to diagnosis and where appropriate medication."

13. What the doctor had to do was to make his own diagnosis, along the lines which he has just indicated, and Professor Seager sets out in some detail his impressions of the applicant. He refers to the medicaments which the applicant was taking and plainly had the appropriate factors in mind.
14. The applicant makes the point that the dosages prescribed to him are of such a degree that the only reasonable conclusion was that that an illness coming within section 1 was established. At the end of his submissions the applicant referred to prescriptions actually given to him at the material time (page 112), though the relevant document was not disclosed to him until a late stage.
15. The applicant also submits that it is not open to the respondents to argue as they have when they themselves formed the opinion, as appears from a letter in the bundle at page 157, that he was unwell to a considerable degree.
16. The applicant refers to the number of episodes he has suffered in support of his submission that no tribunal could reasonably conclude that he was not suffering from a depressive illness of the requisite degree to bring him within section 1. The same point is made in relation to the deemed effect. That too was carefully considered by the Employment Appeal Tribunal by way of analysis of the decision of the Employment Tribunal. I have to say that I find their reasoning persuasive and I cannot improve upon it. Paragraph 18:

"We do not believe that the Appellant has demonstrated any case of perversity here."

"As the Appellant recognises, they can only be characterised as a point of law if the Tribunal came to a conclusion which can properly be described as perverse."

"The reason why it nevertheless held that he was not disabled was that it judged that the depression was mild and that accordingly it did not have a substantial adverse effect on his ability to carry out normal day-to-day activities."

17. The applicant has referred to his present problems and the medication that he is taking. He submits, and, if I may say so, does so persuasively and attractively, that this case gives an opportunity for a higher court to look at the whole question of deemed effect which was considered in the Employment Appeal Tribunal, Morison J, President, presiding in Goodwin v Patent Office [1999] ICR 302. This is not a straightforward area of the law. The applicant submits guidance should be given by a higher court and that with his experience of depression he would be in a position to assist the court, and guidance would be of assistance to many people with mental health problems.
18. I do not find this a case in which it is arguable that the decision of the Employment Tribunal was wrong in law. They were entitled to accept the evidence of Professor Seager, notwithstanding the energetic challenge which was made to it, and on both issues (the second being that of deduced effect) they were, in my judgment, entitled to come to the conclusion they did.
19. Had I considered there was an arguable case, I would have granted an extension of time to the applicant.
20. The applicant's final point is in relation to the failure to disclose a medical report which he believes exists. He has referred to an order of the Employment Tribunal of 20th February of this year in relation to disclosure. He accepts that that is not relevant to the present issues, but I have this morning been referred by him to a letter from the Borough Council in which they say that the medical report which he claims existed, and which he says counsel before the Employment Tribunal referred to, does not in fact exist.
21. I do not propose to consider this matter in any detail. A possible ground of appeal to this court is, of course, on the basis of fresh evidence. The applicant says that until he can take the matter further he does not know whether there is fresh evidence. I have to say I do not find what is said in the Bedford Borough Council letter of 26th April necessarily inconsistent with what Professor Seager said in his report. It was not a representation that a medical report existed, but was simply a reference to something not being mentioned in the medical examination which it is clear did occur at the time of the applicant's first employment with the borough. This is not a case where this court should take upon itself, on the material before me, the task of interlocutory matters such as discovery. If the claims are relevant to what remains before the Employment Tribunal, Mr Brennan can pursue the matter with that Tribunal in the ordinary way.
22. For the reasons I have given, this application for permission to appeal must be refused.
23. Thank you, Mr Brennan.
24. MR BRENNAN: Thank you, my Lord.
Order: Application for permission to appeal refused. (Order does not form part of the approved judgment).