Appeal No. EAT/1303/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                 At the Tribunal
	        On 7 December 2001
Judgment delivered on 20 February 2002.

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR R SANDERSON OBE
MR J C SHRIGLEY

MS M LATCHMAN	APPELLANT

REED BUSINESS INFORMATION LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	KEVIN HARRIS
Free Representation Unit
4th Floor
Peer House
8-14 Verulam Street
London WC1X 8LZ
	
For the Respondent	MR A CHOUDHURY
(of Counsel)
Instructed by: 
Messrs Manches
Solicitors
3 Worcester Street
Oxford OX1 2PZ	

MR JUSTICE LINDSAY (PRESIDENT):
1.	This appeal from the Employment Tribunal at London South concerns a claim under the Disability Discrimination Act 1995, one in which the effects of the mental impairment were held not to have lasted for 12 months.   The debate before us included the likelihood of a recurrence of the effects of the impairment, the likely consequences of the medical treatment given and whether either or both of such possibilities should have resulted in the impairment being regarded as one which had lasted more than 12 months.

2.	Mr Kevin Harris appears (as he did below) for the erstwhile employee and appellant, Ms Latchman, and Mr Choudhury (as he also did below) appears for the former employer and respondent, Reed Business Information Ltd.

3.	On 2nd September 1999 Ms Meena Latchman presented an IT1 for Disability Discrimination.   She said she had been employed by the Respondent from 14th December 1998 to 30th June 1999.   She was an Assistant Management Accountant.   At the time she had joined the Respondent she had indicated she was suffering from bulimia.   She started as a probationer for 6 months but before that had ended she had claimed she was suffering from stress-related illness and was being allowed time off for treatment.   She sought a less stressful position.   She said she had been told her probationary period was unsuccessful partly due to her illness and partly because her work was unsatisfactory;  on 30th June 1999 she was dismissed.   She claimed to have been discriminated against for a reason related to her disability.   Exactly what it was that was claimed to be her disability - bulimia or something stress-related or some combination of those - was not made clear in her IT1.   She also claimed breach of contract as to the Respondent’s failure to comply with its grievance and disciplinary procedures.

4.	On 28th September 1999 the Respondent put in its IT3.   The earlier mention of bulimia in Ms Latchman’s confidential health questionnaire was admitted but it had been accompanied, said the Company, by Ms Latchman indicating she required no adjustment to be made or support to be given in her working arrangements with regard to her medical condition.   As to her probation, of the four assessments made before she had been signed off as unfit to work, three had drawn attention to concerns about her performance.   It was denied that she was disabled within the 1995 Act.   In any event, it was claimed, the Respondent had offered to consider alternative employment for her but the offer had been refused.   The breach of contract was denied;  the grievance and disciplinary procedures did not apply during probation, a stage beyond which Ms Latchman never progressed.

5.	On 20th October 1999 a Pre-hearing discussion was arranged at the Employment Tribunal.   Both sides were represented by Solicitors.   That led to an Order of 9th November 1999 (although it is likely that the contents of the Order were less formally indicated at the discussion itself).   The Order gave very detailed and, if we may say so, thoroughly sensible directions as to medical evidence;  Ms Latchman was to supply a medical report from a qualified medical practitioner (giving the information set out in the Order).   Provisions were made for any challenge to that by the Respondent and for Ms Latchman’s examination by a qualified medical practitioner appointed by the Respondent.   Schedules to the Order specified the issues in the case and directed the medical evidence to include whether as at 30th June 1999 (the date of dismissal) Ms Latchman had a physical or mental impairment affecting her ability to carry out normal day-to-day activities.   If she had a progressive condition, the Schedule specified further matters that would need to be addressed.

6.	Pursuant to that Order medical reports were prepared by Dr Bijlani M.B., B.S., M.R.C. Psych (on Ms Latchman’s instructions) and Dr. Rowan M.B., B.S., M.R.C. Psych, Consultant Psychiatrist (at the requesting of the Respondent).   Dr. Bijlani had met Ms Latchman only once, on 8th November 1999;  Dr Rowan interviewed her on 12th January 2000.   The Tribunal, as we shall come on to, also had before it a Medical Report Form compiled by Dr. A.K. Sennik following a 24 minute examination on 10th March 2000 made of Ms Latchman in relation to an Incapacity for Work claim.

7.	On 22nd June there was a hearing at the Tribunal at London South.   On 15th September 2000 the decision of the Tribunal, under the Chairmanship of Mr R. Peters, was sent to the parties.   It held by a majority that Ms Latchman was not disabled for the purposes of the 1995 Act and in consequence her IT1 was dismissed.

8.	On 13th October 2000 the Employment Appeal Tribunal received Ms Latchman’s Notice of Appeal.   At the Preliminary hearing at this Tribunal on 7th March 2001 the Notice of Appeal was refined by the exclusion of one ground.

9.	To revert to the Tribunal’s decision, it had been accepted before it that as at 30th June 1999 Ms Latchman had suffered from both bulimia nervosa and “severe depression episode without psychotic symptoms”.   Both were accepted as clinically well-recognised mental impairments.   The Tribunal said:-
“12.	Accordingly the issue for the Tribunal was as to whether the impairments individually or together had a substantial and long-term adverse effect on the Applicant’s mobility and/or memory, ability to concentrate, learn or understand.”

10.	Oral evidence was given by Ms Latchman and her husband and by Dr Rowan.   No oral evidence was given by Dr Bijlani or Dr Sennik but a letter of October 1998 from Dr Katzman, a clinical Psychologist at the Maudsley Hospital Out Patient Eating disorders Programme, was added to the medical evidence received, as were clinical notes from Ms Latchman’s G.P. from 1997 on.

11.	As the argument continued at the Tribunal below the focus was put on whether the adverse effects were “long-term” within paragraph 2 (1) (a) of Schedule 1 to the 1995 Act which provides:-
“2.	(1)  The effect of an impairment is a long-term effect if -
(a)	it has lasted at least 12 months;
(b)	the period for which it lasts is likely to be at least 12 months;  or
(c)	 it is likely to last for the rest of the life of the person affected.
	(2)  Where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”
As to that the Tribunal said as follows (with our emphasis):-
“37.	The Tribunal noted that the severe depressive episode without psychotic symptoms did have a substantial adverse effect upon the Applicant’s ability to carry out normal day-to-day activities from March/April 1999 until at least the end of that year.   In particular the Applicant’s agoraphobia had a particular limiting affect on her mobility and the severe depression likewise affected her ability to carry out normal day-to-day activities.
38.	The majority of the Tribunal accepted the evidence of Dr Rowan which was to the effect that when he met with the Applicant on 12 January 2000 she had ceased to have the impairment of severe depressive episode, although she continued to have a milder depressive illness.   At that time the agoraphobia had gone away but left her with a  fear of going to busy places and her memory/concentration at that time was relatively normal.   The majority would therefore find that although the severe depressive episode had had a substantial adverse affect upon the Applicant’s ability to carry out normal day-to-day activities it did not last twelve months.
39.	The majority of the Tribunal considered whether the severe depressive episode without psychotic symptoms was likely to recur.   The Tribunal noted that the Applicant was more susceptible to depression due to her bulimia and that the severe depressive episode could be re-triggered in certain situation such as a bullying environment.   However the Tribunal also noticed that the depressive illness is usually time limited.   The Tribunal noted and accepted Dr Rowan’s evidence that the risk of a  further depressive episode was possibly about 50%.   The majority of the Tribunal accordingly found that it could not be said that it is more probable than not that a  recurrence of the severe depressive episode would happen.   In those circumstances the majority of the Tribunal did not find that the adverse effects resulting from the severe depressive episode could be said to have lasted twelve months or more.
40.	The Tribunal members also looked at the combined effect of the bulimia and the severe depressive episode.   Again the evidence accepted by the Tribunal was that the combined effect of the bulimia and the depression was no greater that the effect on day-to-day activities of the depression as it was the severe depression which had had that effect and not the bulimia.
41.	In those circumstances the majority of the Tribunal would find that the Applicant falls outside the definition of a disabled person as set out in the Disability Discrimination Act 1995.  ..........”
It has to be remembered that whilst bulimia and “Severe depressive episode without psychotic symptoms” are shewn to be clinically well-recognised illnesses (each falls within the World Health Organisation’s International Classification of Diseases), mere “depression” or “depressive episode” falling short of “severe” is not.   As to the rôle of the WHO-ICD see the Guidance issued by the Secretary of State on the 31st July 1996 as to the definition of “disability”, para 14 (“the Guidance”).

Actual duration of the effects of the impairment.
12.	The majority view at the Tribunal was that as at the 30th June 1999, whilst there was there impairment by way of severe depressive episode, its effects lasted only for some 8 or 9 months (March/April 1999 to the end of the year) or perhaps further but not later than 12th January 2000 and hence, in any event, not such as to have lasted 12 months.   It cannot be said that that was a view not open to the Tribunal on the evidence which it received.   As at the 30th June 1999 paragraph 2 (1) (a) was thus not satisfied.   Paragraph 2 (1) (c) does not seem to have been asserted.

Likely duration of the effects.
13.	This is the argument which Mr Harris put at the forefront of his oral submissions.

14.	As for paragraph 2 (1) (b), as at the 30th June 1999 a severe depressive episode was still being endured;  the question within paragraph 2 (1) (b), if the issue was duly raised below, therefore was whether as at the 30th June 1999 the period for which its effects would last was likely to be at least 12 months from its inception, namely down to March or April 2000.   But what is meant by “is likely” in section 2 (1) (b) and on what evidence was the Tribunal entitled to address that question?

15.	The Guidance at paragraph B7 as to likelihood says:-
“It is likely that an event will happen if it is more probable than not that it will happen.”
As will have been seen the Tribunal applied that meaning of “is likely” and they were right to do so.

16.	As to the date as at which the likelihood has to be examined, the Guidance says at B8:-

“B8.  In assessing the likelihood of an effect lasting for any period, account should be taken of the total period for which the effect exists.   This includes any time before the point when the discriminatory behaviour occurred as well as time afterwards.   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, age).”
The Guidance has to be taken into account if it appears to us to be relevant - section 3 (5).   It does appear to us to be relevant.   

17.	It is always tempting to a Court and is often appropriate, when it is charged with finding out what, at some earlier date, the future would then have seemed to hold, to have regard to what the future in fact came to pass to be, as, by the date of the hearing, will have sometimes come to be the case.   The so-called “Bwllfa principle” deals with such a position;  as Lord MacNaughten put it, in relation to an arbitrator:-

“Why should he listen to conjecture on a matter that has become an accomplished fact?   Why should he guess when he can calculate?   With light before him, why should he shut his eyes and grope in the dark?”

See Bwllfa & Merthyr Dare Steam Collieries (1891) Limited -v- The Pontypridd Waterworks Co. [1903] A.C. 426 at 431.   But both the terms of Schedule 1 paragraph 2(1)(b) and the opening words of B8 emphasise that here what has to be examined is the existence or not of a likelihood.   The question is not whether the impairment in fact lasted at least 12 months (as would very often, given inescapable delays in arranging hearings, be capable of being easily seen by looking backwards from the date of the hearing) but whether the “period for which it lasts is likely to be at least 12 months”.   Although the latter part of the first sentence of B8 is unhelpful as guidance, it is not, in our view, intended to displace the otherwise proper construction of paragraph 2 (1) (b), which the present tense “is likely” assists towards, namely that the likelihood falls to be judged as it currently was or would have seemed to have been at the point when the discriminatory behaviour occurred.   The latter part of B8 (taking account of the typical length rather than the actual length of an effect as it has transpired to be) emphasises that it is not what has actually later occurred but what could earlier have been expected to occur which is to be judged.

18.	Mr Harris has sought to persuade us that Greenwood -v- British Airways plc [1999] IRLR 600 is to the contrary - in particular paragraph 41.   It is clear that in some respects paragraph 41 is not to the contrary but to the extent that it is we must respectfully differ from  it.

19.	The question for the Employment Tribunal, were the issue duly raised below, was therefore what the likelihood would have seemed to have been as at the 30th June 1999 on information that did then exist or could by then have existed.   The experts who looked at Ms Latchman after that date could have been asked to work backwards, if they were able to do so, from their view of her formed at later dates, to speak to what her prognosis would have seemed to have been back in June 1999.

20.	However, there are two difficulties in Mr Harris’s way with this argument.   First of all, although the Employment Tribunal sets out his submissions with apparent care, the issue as to likely duration was not mentioned by the Tribunal.   Secondly, to the extent that it was touched on at all, the evidence as a whole was not such to have obliged, and the evidence which the Tribunal preferred tended against, a finding that a likelihood of an overall of 12 months existed as at 30th June 1999.   Thus Dr Bijlani, in answer to the written question:-
“Has the substantial adverse effect of the impairment either lasted 12 months or is it likely to last in total at least 12 months ....?”
(a not wholly apt question) answered:-
“Yes.   The substantial adverse effect (depressed mood as a result of the various symptoms of bulimia nervosa) has been a feature of Mrs Latchman’s life on an intermittent basis over the past 10 years.”

That the effect was intermittent indicates that the possibility existed of spells of less than a year from beginning to end occurring.   Moreover, preferring Dr Rowan’s evidence, the Employment Tribunal did not, it seems, regard “depressed mood” as amounting to impairment.   Dr Bijlani’s answer “Yes” assumed impairment and failed to distinguish between fact and likelihood.

21.	In answer to the same question Dr Rowan said inter alia:-
 “The substantial part of the impairment has been quite short-lived.   I would judge from the story that she clearly became more severely depressed from perhaps March or April 1999 .......   Since then ........ there has clearly been significant improvement.”    
In addition, the Employment Tribunal, summarising his report, said:-
“As at 30th June 1999 there would have been a significant impairment of the Applicant’s abilities to carry out normal working, principally due to her depressive illness ......  The substantial part of the impairment would have been quite short-lived.”
The reference “Would have been quite short-lived” is consistent with Dr Rowan looking back to the state of things as it would have seemed to have been as at June 1999.

22.	If the likely duration point was adequately put to the Tribunal, we cannot see that any evidence was given that conduced to, still less obliged, a conclusion that paragraph 2 (1) (b) was made good.   The onus would have been on the Applicant to make out such a case;  if the point was taken it seems not to have succeeded;  it cannot be seen that it should have done.   We see no error of law by the Tribunal in this part of the Appellant’s argument.

Likely recurrence of the effects
23.	Paragraph 2 (2) and paragraphs 6 (1) and (2) of the first Schedule to the 1995 Act provide:-
“2.	(1)	.........
	(2)  Where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”
“6.	(1)  An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.
	(2)  In sub-paragraph (1) “measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.”

We have already cited the passage from the Tribunal’s paragraph 39 in which it held that it could not be said that it was more probable than not that a recurrence of the severe depressive episode would happen.   In that circumstance there was no good reason to hold that that condition continued beyond the 12th January 2000, and in turn, no good reason to see it as falling within paragraph 2 (1) (b) by way of paragraph 2 (2).   The relevant time to examine the likelihood of recurrence for the purposes of paragraph 2 (2) is, as it seems to us, at the point at which the impairment had ceased to have substantial adverse effect.   That was late 1999 or early 2000.   Dr Rowan’s examination on the 12th January 2000 was thus timely and the Tribunal was entitled to accept his evidence, based on his examination that day, as conclusive on the point.

The effect of medical treatment
24.	Mr Harris asserts, however, that Dr Rowan’s evidence is undone by reason of its failing to take account of paragraph 6 (1).   There is no finding by the Employment Tribunal as to any continuing medical treatment for, or as to the effect of withdrawal of continuing medical treatment upon, Ms Latchman’s impairments and their effects.   If a case was to be made under paragraph 6 (1) the onus was on her to make it.   Her bulimia had become less severe with treatment but as to that condition, the Employment Tribunal held that:-
“The evidence which was accepted by the Tribunal was that the bulimia had little or no effect upon either the Applicant’s working or social life, and it had no adverse effect upon her mobility, her memory or her ability to concentrate, learn or understand.”
In oral evidence (as to which we have the Chairman’s Notes) Ms Latchman said:-
“No on-going treatment for bulimia.”
There was no mention by the Employment Tribunal that the severe depressive episode had stopped, or was kept at bay, by some continuing medical treatment.   Ms Latchman was repeatedly prescribed Prozac but she said it led to no dramatic improvement in her condition.   She asked to be taken off Prozac.   She said:-
“When taken off Prozac, didn’t really find any difference.”
Later she was put back on it.   There was no medical evidence of a causal link between her taking Prozac and any cesser of, or reduction in, any substantial adverse effect.   She said:-
“Haven’t noticed any difference on medication.”
Dr Rowan said that Prozac might have had a small beneficial effect but “Don’t think she would have got worse without Prozac”.   She had taken St John’s Wort but there is nothing to suggest it proved beneficial or that its absence would lead to any relevant recurrence;  Ms Latchman said:
“St John’s Wort didn’t work.”

25.	Paragraph 6 (1) requires proof by the claimant of an impairment of a type which would be likely to have a substantial adverse effect of the kind there described but for the medical treatment or other measures currently being taken to treat or correct that impairment.

26.	In our judgment there was no evidence given capable of supporting a finding in Ms Latchman’s favour under paragraph 6 (1).   The Tribunal does not mention Mr Harris having relied upon paragraph 6 (1) and in argument we understood him to accept that he had not but, even if he had, the Tribunal had no material enabling it to deploy the paragraph in Ms Latchman’s favour.

Perversity
27.	Mr Harris’s chief complaint under this heading is that due weight was not given to Dr Sennik’s medical report form.   It indicated that in his view as at the 10th March 2000 Ms Latchman had either been previously diagnosed as suffering from depression, bulimia, arthritis and stress-related asthma or was that day found to be so suffering.   He thought she had a mental health problem and gave his very brief views under a great many standard form headings.   The Employment Tribunal said:-
“However, the Tribunal members noted that Dr Sennik was carrying out his examination for a different purpose applying a different test and the Tribunal has to apply the test as set out in the 1995.”
That, although brusque, was accurate and sufficient;  Dr Sennik was not addressing disability within the meaning of the Disability Discrimination Act.   Importantly, he did not give oral evidence;  it is not improbable that the fact that the medical expert called by the Respondent, Dr Rowan, attended, was cross-examined and could fully explain and expand upon his report conduced to the Tribunal’s preference of his evidence but that preference was a choice the majority at the Employment Tribunal was fully entitled to make.
Mobility   
28.	Mr Harris complains that the Tribunal paid insufficient attention to the effect of Ms Latchman’s agoraphobia upon her mobility.   However, the agoraphobia itself was relatively short-lived;  it went away but left her with a fear of going to busy places.   Dr Rowan’s evidence clearly distinguished between agoraphobia (a clinically well-recognised illness) and something lesser and, it would seem, not so recognised, namely a fear of going to busy places, something which was, it seems, not held to be a mental impairment within Schedule 1 paragraph 1 (1) and the WHO-ICD.   Further, paragraph A7 of the Guidance says:-
“A7.  Account should be taken of how far a person can reasonably be expected to modify behaviour to prevent or reduce the effects of an impairment on normal day-to-day activities.   If a person can behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities the person would no longer meet the definition of disability.”
Ms Latchman’s oral evidence included:-
“On my own will only walk to newsagent - less than 5 minutes walk.
Drive to hospital - outskirts of Tooting.
Went to seaside with husband last year one day.
- also to Richmond Park for walk.
Around March 2000 started going to supermarket with husband.”
Her written evidence indicated that she was able to go to her local shop.   There does not seem to have been any evidence that she was unable to organise her life so as to avoid busy places.   That the Tribunal had Ms Latchman’s mobility in mind is plain;  they expressly referred to it as being amongst Mr Harris’s submissions and in their paragraph 37 cited above.   The Tribunal failed expressly to deal with mobility as a separate subject but its only relevance was under paragraph 4 (1) of Schedule 1 where it is to be examined into as an activity possibly affected by an impairment.   Absent a long-term impairment (here a mental impairment) mobility is not required to be decided upon.   We do not see the Tribunal’s failure to be a significant error on the Tribunal’s part;  it is by no means every issue that has to be expressly resolved and, on the evidence given, it is difficult to see that, even if it had been resolved, it could have been resolved in Ms Latchman’s favour.

Conclusion
29.	Mr Choudhury accepts, as, indeed, did the minority member of the Tribunal, that Ms Latchman’s case was close to the borderline.   He argues that the Tribunal came to a careful conclusion after considering the evidence in detail.   He says that the Tribunal directed itself properly as to the law.   So far from its being a “perverse” decision, Mr Choudhury argues that it was one that was open to any reasonable Tribunal properly directing itself.   We agree.   In particular, the Tribunal was entitled to prefer Dr Rowan’s very full report and his oral evidence, both directed to the 1995 Act, to Dr Sennik’s analysis  based on a 24 minute examination and directed to the quite different tests applicable to claims for Incapacity at Work benefits.   We accordingly dismiss the appeal.