Appeal No.	 EAT/462/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                  At the Tribunal
	          On 18 October 2001
Judgment delivered on 10 December 2001

Before
HIS HONOUR JUDGE J R REID QC
MS G MILLS
PROFESSOR P D WICKENS OBE

DR G A MOWAT-BROWN	APPELLANT

UNIVERSITY OF SURREY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ANDREW HENSHAW
(of Counsel) 
Instructed by:
The Disability Law Service
39-45 Cavell Street
London E1 2BP	
For the Respondent	MR MARK SUTTON
(of Counsel)
Instructed by:
Messrs Barlows
Solicitors
Guildford House
66 Guildford Street
Chertsey
Surrey KT16 9BB	

JUDGE REID QC

Preliminary

1	This is an appeal from the decision of an Employment Tribunal held at London South which, by a decision sent to the parties on 14 February 2000, dismissed Dr Mowat-Brown's claims for disability discrimination, unfair dismissal, a redundancy payment and breach of contract.  The appeal relates to the dismissal of his claims for disability discrimination and unfair dismissal.

2	From 1 October 1981 to 30 September 1998 Dr Mowat-Brown was employed as a lecturer in music at the University of Surrey under a series of contracts.  In autumn 1995 he started to suffer acute manifestations of what was to be diagnosed as multiple sclerosis.  At that time he was engaged under a contract described as 0.55 FTE (ie equivalent to 55 per cent of a full time contract).  Following the amalgamation of the Departments of Music and Dance into a new School of Performing Arts for the academic year commencing 1 October 1998 Dr Mowat-Brown was relieved of his administrative and research duties and as a result was offered only a 0.2 FTE contract.  This he declined, and launched his application in the Employment Tribunal.    

3	By his amended grounds of appeal Dr Mowat-Brown claims:

(1)  The Tribunal erred in law by failing to act fairly in disposing of his claim under the 1995 Act on the basis he was not disabled when the existence of disability had not been put in issue until the University's closing submission.

(2)  The decision that the Tribunal reached that he was not disabled within the meaning of the 1995 Act was perverse.
(3)  The Employment Tribunal misdirected itself in law in its interpretation of paragraph 8 of Schedule 1 of the Disability Discrimination Act 1995 ("the Paragraph)".

(4)  The Tribunal erred in fact in finding that:
 "the applicant did not raise any concerns about the accuracy of the figures [on which the University's offer of a new 0.2 FTE contract was based]"
 when in fact he clearly did.

The fourth ground relates to his unfair dismissal claim.  The other three points all relate to his disability discrimination claim.  The order set out above is not the order in which the points are raised in the amended notice of appeal but is the most convenient order for dealing with the issues which arise on this appeal. 

The procedural point
4	Dr Mowat-Brown says his claim was dealt with unfairly because he was, in effect, ambushed by a new point (ie that he was not suffering from a disability within the meaning of the 1995 Act) in the University's closing submissions and did not have the chance to call the evidence he would have wished to call to deal with the point.  This point was not raised in his original Notice of Appeal and appears first to have been ventilated after the preliminary hearing of the appeal.

5	The starting point of the argument is paragraph 6 of the decision which reads:

" The Respondents contended in their amended grounds of resistance that the Applicant's claim of disability had been brought after the expiry of the period permitted by Schedule 3 paragraph 3(1) of the Disability Discrimination Act 1995 but in his closing submissions on behalf of the Respondents Mr Sutton also submitted that the Applicant did not satisfy the definition of disability in the 1995 Act" 

Dr Mowat-Brown contends that he was not aware until that stage that his disability was in issue and had he been aware that his disability was in issue he would have called oral evidence from the doctors who had seen him as well as putting in the very full doctors’ reports which were before the Tribunal.  The fact he did not have the chance to adduce live evidence from the medical practitioners, it was submitted, rendered the proceedings unfair.

6	On behalf of the University it was submitted that the issue of Dr Mowat-Brown's disability was there on the face of the amended grounds of resistance.  Those grounds had been put in before the medical reports were disclosed and it had therefore been impossible to do more than merely not admit that he was disabled within the meaning of the Act.  The question whether Dr Mowat-Brown was disabled was expressly raised on the morning of 6 September (the first of the five days of the hearing) and Dr Mowat-Brown can have been in no doubt that the issue was a live one.  There had been directions for the disclosure of medical reports and in particular the Chairman had at an interlocutory hearing on 6 April 1999 given Dr Mowat-Brown leave to serve any additional medical evidence on which he proposed to rely at the hearing no later than 9 August 1999.  The result of that direction had been that Dr Mowat-Brown provided a report from Dr Peter Bain, a consultant neurologist, dated 29 July 1999.  It was this report on which the Tribunal primarily relied in its findings of fact.  If Dr Bain had been called to give oral evidence it would not have been open to Dr Mowat-Brown to cross-examine him, which was in effect what he now wished he had done. Furthermore, Dr Mowat-Brown's witness statement and oral evidence dealt with his disability. The problem that he had was that the Tribunal had not been impressed with his evidence as to the extent of his disability.

7	In our view this ground of appeal is without substance.  It arises entirely from the phrase "in his closing submissions" in the Employment Tribunal's decision.  The issue was not one which arose for the first time in closing submissions, nor do we think that paragraph 6, properly read, is intended to suggest that it did.  The point was clearly a live one throughout and Dr Mowat-Brown cannot now complain about it.

Perversity
8	It was submitted on behalf of Dr Mowat-Brown that the finding of the Tribunal that he was not disabled within the meaning of the Act was perverse.

9	By section 1(1) of the 1995 Act, a person has a disability for the purposes of the 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.  By section 1(2) a “disabled person” means a person who has a disability. Section 1 is expressed to be subject to the provisions of Schedule 1, of which paragraphs 2, 4 and 5 deal respectively with long-term effects, normal day-to-day effects and substantial adverse effects.  Paragraph 6 requires medical treatment to be disregarded when determining whether an impairment would be likely to have a substantial adverse effect on ability to carry out day-to-day activities.

10	Counsel for Dr Mowat-Brown submitted that the Tribunal had to have regard to the cumulative effects of a condition (see Goodwin v Patent Office [1999] IRLR 4 at paragraph 37).  When looking at the cumulative effects of his disease and the overall impact on Dr Mowat-Brown the Tribunal did not make its own judgment but merely followed the views expressed by Dr Bain, who (it was suggested) might not have been familiar with the criteria in the Act.  In doing this, the Tribunal fell into error in the same way as the Tribunal in Abadeh v BT [2001] IRLR 23 and Vicary v BT [1999] IRLR 680.  The Tribunal, it was submitted, placed undue weight on Dr Bain's observations which were made at one point in time (in April 1999) and improperly disregarded Dr Mowat-Brown's own evidence.  The Tribunal's approach overlooked the fact that MS is a disease which by its nature involves periods of remission and that by Schedule 1 paragraph 2(2) where a disease has had, but has ceased to have, a substantial adverse effect, it is to be treated as continuing to have that effect if the effect is likely to recur.  Further the Tribunal failed to take account of the reports of Dr Pearson, the University's Occupational Health Consultant, and Mr Chapman, its Occupational Health Adviser.  The Tribunal had been wrong in law when it held that conducting was not a normal day-to-day activity and so disregarded the fact that Dr Mowat-Brown had had to give up conducting.  What it should have done was consider the physical reason why he had had to give up, and then consider whether that physical reason affected any day-to-day activity: see Ekpe v Commissioner of Police for the Metropolis [2001] IRLR 605.  Counsel submitted that if the Tribunal had taken proper account of the law and the evidence it would have been bound to conclude that Dr Mowat-Brown was disabled within the meaning of the Act.

11	Counsel for the Respondent suggested that the Appellant was approaching the decision with a fine toothcomb.  The Tribunal had in mind the various symptoms of which Dr Mowat-Brown complained and had regard to the Secretary of State's guidance (as was clear from paragraph 7 of the Decision). Dr Bain made his report specifically for the purposes of the proceedings as did the Appellant's GP, Dr Lane.  It hardly lay in Dr Mowat-Brown's mouth to complain that the Tribunal appeared to have given more weight to the medical evidence he adduced than that adduced by the University.  The Tribunal, it was submitted were perfectly entitled to take the view that they did of the Appellant's evidence.  There was nothing to suggest that the Tribunal made any error of law.  It had made findings of fact which it was entitled to do.

12	In our judgment the Tribunal did not err in law in making the findings of fact which it did. It:
 "did not regard Dr Mowat-Browne as a  wholly reliable witness with regard to his medical condition" 

and regarded his evidence that he suffered from weakness of the limbs and poor co-ordination as 
"vague and unconvincing", 
noting that he was not supported in this by Dr Bain. It is worth noting that Dr Lane (Dr Mowat-Brown's GP) reported that:
 "He has very few  symptoms and his disease seems to have troubled him very little. In fact his multiple sclerosis seems quite quiescent." 
There was some evidence as to some urinary urgency and also of difficulty carrying loads, of having difficulty with a heavily sprung door at work, and in standing for long periods.  However Dr Bain reported:

 "I have not been able to detect any weakness in his limbs throughout the course of his illness, although he does experience symptoms of fatigue." 

This was evidence the Tribunal was entitled to accept.  The Tribunal went on and formed its own view: 
"we are not satisfied that any of the functions set out in paragraph 4 of Schedule 1 of the 1995 Act has been affected to any substantial extent by the Applicant's condition."  
In our judgment the Tribunal was entitled, on the evidence it accepted, (subject to the Schedule 1 paragraph 8 point to which we turn next) to hold that Dr Mowat-Brown was not disabled within the meaning of the Act.

Schedule 1, paragraph 8
13	The Paragraph is concerned with "Progressive Conditions".  It is in the following terms:

“(1) Where-
a person has a progressive condition (such as cancer, multiple sclerosis or muscular dystrophy or infection by the human immunodeficiency virus),
as a result of that condition, he has an impairment which has (or had) an effect on his ability to carry out normal day-to-day activities, but
that effect is not (or was not) a substantial adverse effect, he should be taken to have an impairment which has such a substantial adverse effect if the condition is likely to result in his having such an impairment.”
By virtue of the guidance issued by the Secretary of State under section 3 of the Act, in determining whether it is likely that an event will happen, the test is whether it is more probable than not it will happen, and in assessing the likelihood of an effect lasting for any period, account should be taken of the total period for which the effect exists, including time before and after the point when the discriminatory behaviour occurs.

14	The Tribunal accepted the report of Dr Bain which was in these terms:
 "Presently, he is not disabled by the condition and is fit for work. Unfortunately, it is not possible to give an accurate prognosis for any individual with multiple sclerosis because of the variable nature of the condition. The absence of any abnormal signs, three years after his presentation to me, provides grounds for some optimism about his future." 

In the light of that report the Tribunal held that the
 "report does not indicate it is more likely than not that that position will change in the future so as to bring the case within paragraph 4 of Schedule 1." 
It is to be noted that Dr Lane's view was similar. He wrote: 
"Offering a prognosis in multiple sclerosis is often very difficult. There is no doubt that some people progress very quickly and may have a very severe and unpleasant form of the disease. However, for many others it is simply characterised by one or two symptomatic episodes in life and really affects people very little. It is always very difficult to make an assessment as to which group a patient will fall into but, so far, it must be assumed that Dr Mowat-Brown's outlook is very good after four years of such little trouble." 

15	On behalf of Dr Mowat-Brown it was submitted that the Tribunal's conclusion was wrong in law. Counsel submitted that because of the uncertainty of prognosis those MS sufferers who were not suffering from the primary progressive form of the disease (said to be about 15 per cent of sufferers) and who would mostly already be suffering substantial effects and so not needing to rely on the Paragraph, would be unable to take advantage of the Paragraph. If substantial effects did occur, then they would not need to take advantage of the Paragraph. This could not, it was submitted, have been Parliament's intention. A purposive construction should be given to the Act (as was required by Goodwin v Patent Office [1999] IRLR 4 at paragraph 22).
16	Counsel submitted that the structure of the Paragraph supported this view.  The reference to specific medical conditions in paragraph 8(1), and in particular the provision in paragraph 8(2)(a) for regulations to specify that particular conditions are to be treated as progressive, was said to support the view that the “likely to result” element at the end of paragraph 8(1) is to be approached on a condition by condition basis rather than an applicant by applicant basis. Otherwise, it was submitted:

(a) regulations specifying conditions as progressive would serve little purpose, since each applicant would still have to prove likely future substantial effects in his particular case: proof of which would be tantamount to proving that the condition was indeed progressive, thus rendering the regulations nugatory; and

 (b) regulations specifying conditions as non-progressive would be arbitrary, since they would mean the Paragraph did not apply even though the applicant could prove likely future substantial effects in his particular case.

17	Counsel submitted that if his submission was not accepted, then there was a problem as to how the words:
 “if the condition is likely to result in his having such an impairment” 

in the Paragraph are to be applied in a manner that does not wholly undermine the evident intention that paragraph 8 be applied to MS sufferers.  A requirement that each applicant produce a diagnosis to the effect that in the individual case future substantial effects are more probable than not would be unworkable and result in the effective removal of many MS sufferers from the potential protection of the Paragraph.  Therefore, it was said, a case by case approach was unworkable. At most, the question should be decided on a condition by condition basis which might involve a statistical approach in the light of the particular disease and the known facts about the individual applicant.  For the majority of MS sufferers, with the relapsing-remitting form of the disease, it would mean asking whether or not most people with that condition eventually experience some substantial effects on normal day to day activities.

18	It was next submitted that  possibly through seeking to applying sections 1 and 2 of the Act simultaneously with paragraph 8 the primary question the Tribunal was asking itself was whether the Applicant’s condition had had, or in future was likely to have, a substantial adverse effect on his day-to-day activities.  That, it was submitted, was incorrect when applying paragraph 8.  The Tribunal ought in addressing limbs (b) and (c) of paragraph 8(1) to have first asked itself whether the Appellant’s condition had an effect, whether or not substantial, on his current activities.  There was an inherent risk that a tribunal, having failed correctly to follow through the requisite steps set out in the legislation, arrived at a flawed decision.

19	Counsel then submitted that the conclusion was not supported by the evidence, and suggested the Tribunal was incorrect to treat Dr Bain’s report as a basis for concluding that no substantial adverse effects were likely in future, still less that no such effects would be likely even in the absence of treatment.

20	In response Counsel for the University submitted that the words of paragraph 8 were clear. If Dr Mowat-Brown's construction were correct then there would be no need for any further inquiry once it was established that a person had MS.  The "condition" must be the condition of the particular person. The contrary cannot have been the intention of Parliament.  It would produce anomalous results: for example cancer can be eradicated in some cases, but if the Appellant's construction were correct a person who had had cancer would qualify as disabled if he could demonstrate he had ever experienced any minor or trivial effect of his illness even if the effects were of limited duration and would never progress to substantial effects.

21	In our judgment the words of the paragraph are clear.  The question to be asked is whether, on the balance of probabilities, the claimant has established that the condition in his case is likely to have a substantial adverse effect.  It is not enough simply to establish that he has a progressive condition and that it has or has had an effect on his ability to carry out normal day-to-day activities.  The claimant must go on and show that it is more likely than not that at some stage in the future he will have an impairment which will have a substantial adverse effect on his ability to carry out normal day-to-day activities. How the claimant does this is up to him. In some cases it may be possible to produce medical evidence of his likely prognosis.  In other cases it may be possible to discharge the onus of proof by statistical evidence. 

22	In our judgment there was no error in the way the Tribunal approached their task.  It started from the words of the section and then made its findings of fact. There was no statistical evidence and the medical evidence relating to Dr Mowat-Brown entitled the Tribunal to find that he was not disabled and that it was not more likely than not that in the future the condition would have a substantial adverse effect on his ability to carry out day-to-day activities.

Error of fact
23	Dr Mowat-Brown ceased to work for the University because he was not prepared to accept a 0.2 FTE contract in place of his previous 0.55 FTE contract.  The University had concluded that, following administrative re-arrangements, Dr Mowat-Brown should no longer perform administrative or research functions but only teaching duties.  There is now no complaint against that decision by the University.  The complaint relates to the fact that Dr Mowat-Brown was only offered 0.2 FTE for the purposes of doing his teaching.

24	Dr Mowat-Brown complained in his Amended Originating Application and his witness statement that his dismissal was brought about by the unreasonable and obstructive behaviour of his Head of Department and Head of School and that the 0.2 FTE contract offered was inadequate for the teaching he was expected to do.  He also claimed there was a failure on the part of the University to observe proper procedures and unfairness in dealing with negotiations over the renewal of his contract.  The Tribunal rejected those allegations and held that the University was reasonably entitled to conclude that Dr Mowat-Brown's proposals for what he should do did not justify offering him more than a 0.2 FTE contract.  The Tribunal considered whether the decision not to renew his 0.55 FTE contract was unfair because of errors in the basis on which his timetable commitment was compiled but accepted the evidence of Ms Corinne Collinson (the University's Deputy Director of Personnel) that she checked the working documents supplied by Professor Lansdale on which the lecturing hours had been calculated. 

25	The Tribunal held the University was not under a duty to Dr Mowat-Brown to check the data from which the working documents had been compiled.  Up to that point there is no complaint about the reasoning.  Unfortunately the Decision went on:
"in any event, the Applicant did not raise any concerns about the accuracy of the figures." 
(Extended Reasons paragraph 17).  In fact, the Chairman's Notes of Evidence Ms Collinson's evidence as being: 
"I checked all the spreadsheets and was satisfied it came out at ten (hours). 
  I agreed I review Dr Lansdale spreadsheets. 
  The Applicant said that he was dissatisfied with the (clarity?) and it was inaccurate. 
  I didn’t check all the data -  satisfied myself that Professor Lansdale’s data was in good faith. 
When I looked at Mowat-Brown, I knew it would never be accurate."

There was therefore some evidence that Dr Mowat-Brown had queried the figures.

26	Counsel for Dr Mowat-Brown submitted that the Tribunal made two errors in this passage: the first was the simple factual error, but the second was in failing to consider whether in the light of all the facts, including the fact that it was alerted to the possibility of error in the calculation, the University had acted reasonably in only offering a 0.2 FTE contract, and that the Tribunal had therefore failed to consider properly whether the offering of such a contract amounted to an unfair dismissal.

27	In our judgment there is no substance in this point.  The Tribunal addressed the question of whether Ms Collinson had a duty to check the underlying data. It concluded that it did not. The issue between the University and Dr Mowat-Brown was over his desire to keep his 0.55 FTE contract. The University's genuine evaluation of his research proposals resulted in the University reasonably not offering him a contract which allowed time for research work. The dispute was not in substance about the accuracy of the analysis of the number of "contact hours" (ie teaching time).  The Tribunal found that the University was entitled to offer only a 0.2 FTE contract, and that decision was not dependent on the total accuracy of the analysis of the Appellant's contact hours.  The reference to the Appellant not raising any concerns about the accuracy of the figures was merely a passing comment by the Employment Tribunal after it had expressed its conclusion.  Although the decision does contain this minor error of fact, the error does not vitiate the Tribunal's conclusions.  

Conclusion
28	We conclude that the appeal fails and should be dismissed.	

The Tribunal erred in two respects. First, it approached the matter on the basis that the question was whether the Respondent owed the Applicant a duty to check the figures. The Tribunal ought rather to have considered whether or not the Respondent had acted reasonably in all the circumstances (including the fact that the Applicant had alerted it to the problem: see below).

Secondly. the finding that the Appellant did not challenge the data at the time was based on no evidence. On the contrary, in addition to ample documentary 23 evidence , the Chairman’s notes provided for this appeal indicate that MsCollinson. the only witness who gave evidence on this issue for the Respondent. said in cross-examination:-

A checked all the spreadsheets and was satisfied it came out at ten (hours)7

I agreed I review Dr Lansdale spreadsheets.

The Applicant said that he was dissatisfied with the (clarity?) and it was inaccurate.

I didn’t check all the data — satisfied myself that Professor Lansdale’s data