Appeal No. EAT/205/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

                          At the Tribunal
                        On 22 July 2002
                 Judgment delivered on 29 October 2002

Before
THE HONOURABLE MR JUSTICE NELSON
MR P R A JACQUES CBE
MRS R A VICKERS

HSBC BANK PLC	APPELLANT

MR STEVEN CLARKSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant	MS SUE ASHTIANY
Solicitor
Messrs Nabarro Nathanson
Solicitors
Lacon House
Theobald’s Road
London WC1X 8RW	
For the Respondent	MR PAUL GILROY
(of Counsel)
Instructed by:
Messrs Lawford & Co
Solicitors
Oxford House
16 Oxford Street
Manchester M1 5EH	

MR JUSTICE NELSON

1	On the 18th December 2000 the Employment Tribunal at Sheffield found, at a preliminary hearing of the Respondent’s complaint of unlawful discrimination against his former employer, the Appellant, that he was a disabled person within the meaning of that term under the Disability Discrimination Act 1995. The Appellant challenges the decision on the basis that the Employment Tribunal misinterpreted or misapplied the medical evidence and reached conclusions which were inconsistent with it without explaining why they had done so, erred in its approach to the statutory test for disability, either misunderstanding or misapplying the test, failed to explain its decision and failed to make all necessary findings. The Respondent’s claims for unfair dismissal and breach of contract have yet to be determined.
The Facts.
2	The Respondent had worked for the Appellant Bank for some twenty years from 1979 to 1999. In 1966, when he was a schoolboy, he had been struck by a car as a result of which he sustained a compound fracture of the right femur. He was eleven weeks in an orthopaedic ward and still recalls the gruesome sights of other patients, including some who had had amputations. In 1982 he was struck by a motorcyclist whilst on a zebra crossing and sustained multiple injuries including concussion. He was in hospital for seven weeks, had several operations and at one time thought he might have to have a foot amputated. His left ankle still gives him problems and can be painful if he keeps still for any length of time. He was off work for some eight months. From the time of that accident onwards the Respondent had problems with sleeping and began to have flash backs relating to frightening events in his childhood. He always felt tired, had difficulty with concentration and remembering things. He was however consistently regarded as a most excellent employee as shown by regular assessments. The Tribunal found that he had been enthusiastic, willing to help others and able to think creatively about the work that he was doing.

3	In 1988 the Respondent was promoted twice. He became anxious about his new responsibility and was working long hours. He was diagnosed as suffering from depression in 1989, and suggested to his employers that he should take a step down to a less senior post. He did that in March or April 1990 resulting in a loss of status and income.

4	From the change of his job until 1997 he was coping and had got over the depression but was still suffering from insomnia. In 1997 he noticed symptoms similar to his previous attack of depression with failure to concentrate and difficulty in dealing with his colleagues. In April 1998 his doctor suggested the possibility of post traumatic stress disorder and the Respondent disclosed that he had had momentary blackouts which were becoming distressingly frequent. On 10th July 1998 he was signed off work and forbidden to drive. He has not worked since.

5	The Tribunal noted that his assessments and reviews, without exception, were highly complimentary both towards his work and attitude. He took his work extremely seriously with the result that when in 1997 he received a classification of only ‘high achievement’ rather than ‘outstanding’ he was shocked.

6	The Respondent believed that the Appellant had made no real effort to arrange relocation since July 1998 when they could have done, and was bitter about this. He retired on the grounds of ill health on the 30th September 1999.

7	By further and better particulars of his claim dated 8th September 2000 the Respondent contended that he was disabled from the date of the road traffic accident in July 1982 as a result of physical injury to his ankle, collar bone, pelvis and weight loss resulting from an infection, together with insomnia, post traumatic stress disorder, depression, anxiety and drop attacks. As a result of those physical and mental impairments his mobility, memory, concentration and learning and comprehension were all affected continuously from July 1982.

The Medical evidence.
8	The only medical evidence before the Employment Tribunal was from Dr Lucas, a Consultant Psychiatrist, who was instructed jointly by both parties after the Tribunal had ordered that a report be prepared by a single expert jointly instructed. The Appellant had been prepared to accept that the Respondent was disabled within the meaning of the Act shortly after he went on sick leave on the 10th July 1998 but not that he was disabled before that time. There was no agreement between the parties and hence Dr Lucas was instructed.

9	Dr Lucas’ report of the 15th November 2000 was based upon his examination of the Respondent on the 29th September 2000. Dr Lucas’ main conclusions were: -
(i) The Respondent had mental impairments when he examined him on the 29th September 2000, consisting of post traumatic stress disorder (PTSD) and depression.
(ii) Those conditions did not at the time of the examination and report, and should not in the future, have either a substantial or long term effect on the Respondent’s normal day-to-day activities.
(iii) The PTSD did not pre-date 1999.
(iv) The depression ‘has been transient 1988-90 and 1998-2000’.
(v) The severity of the current conditions may well have been triggered by the Respondent’s retirement on the grounds of ill health in September 1999, and subsequent frustrations with bureaucracy in seeking further employment.

10	Dr Lucas gave evidence before the Employment Tribunal. On the face of the notes there is nothing inconsistent between his evidence and his report. He said that PTSD developed after the Respondent had retired, that he had ‘symptoms throughout’, that the episode in 1989-1990 showed low mood sleep impairment and irritability. He was clinically depressed before he presented. After he came off his medication in July 1990 he worked effectively. Dr Lucas did not think that a person with PTSD could be a high achiever with a focused approach throughout the year. The Respondent was a perfectionist anxious to please whose assessments slipped from outstanding to excellent. In 1998 there was an acute ‘onset’ of depression. The notes confirm that he referred to two distinct episodes of depression.

11	The Employment Tribunal described Dr Lucas as an excellent witness who was a master of his discipline and had been clearly and properly instructed. They record their findings as to his evidence as follows: -
“His view was that the Applicant’s description of his condition over the years made it plain that the Applicant suffered from depression both in 1989 and 1997 onwards and that he suffered mental impairment as a result. During his periods of depression Dr Lucas accepted that the Applicant would have suffered from insomnia, flash backs and blackouts as he described and that he would feel tired and unable to cope at work. In his evidence to the Tribunal Dr Lucas said that he believed that the Post Traumatic Stress occurred after the Applicant retired and says in his report that the two episodes of depression were ‘transient’.”

12	There is no other analysis of the medical evidence in the Employment Tribunal decision.

Disability under the Disability Discrimination Act 1995.
13	A person has a disability under section 1 of the Disability Discrimination Act 1995 if he has: -
(i)  Physical or mental impairment which
(ii)  has a (a) substantial and (b) long term adverse effect on his ability to carry out normal day to day activities.

14	Section 2 of the Act provides that Parts (I), (II) and (III) apply to past disabilities as much as to current disabilities.

15	Schedule I of the Act defines long-term effects. The relevant part of the definition to this case under 2(1)(a) is that the effect of an impairment is a long-term effect if it has lasted at least twelve months. Under section 2(2) of schedule 1, where an impairment ceases to have a substantial adverse effect it is nevertheless to be treated as continuing to have that effect if that effect is ‘likely to recur’. In the case of past disability paragraph 5 of schedule 2, relating to long-term effects, states that where an impairment ceases to have a substantial adverse effect it is nevertheless to be treated as continuing to have that effect ‘if that effect recurs’.

16	It was the Respondent’s case in his further and better particulars that he had physical and mental impairments effecting his mobility, memory, concentration, learning and understanding continuously from the date of the accident of the 26th July 1982. In the skeleton argument for the hearing before the EAT reference is made to the provisions of the Act relating to past disabilities.

17	There is no substantial dispute between the parties as to the relevant law. Any past disability must itself satisfy the test of having substantial and long term adverse effects, as if not, it will not be a qualifying disability under the Act. Where an impairment ceases to have a substantial adverse effect it is to be treated as continuing if that effect is ‘likely to recur’, that is, it is more likely than not that the effect will recur. (B3 of the Guidance). Conditions which recur only occur sporadically or for short periods such as epilepsy can still qualify.

18	In the case of a past disability, where an impairment ceases to have a substantial adverse effect it is to be treated as continuing to have that effect ‘if that effect recurs’, that is, if the effect of the past disability recurs.

19	Were it not to be the case that a past disability must itself satisfy the test of having substantial long-term effects in order to be a qualifying disability under the Act, two wholly unconnected episodes, for example, of a similar infection, such as two unrelated bouts of influenza, would fall within the definition of disability under the Act. This the Appellant submits, and the Respondent does not dissent from, cannot be what Parliament intended.

The findings of the Employment Tribunal.
20	The Tribunal accepted the Respondent’s description of his symptoms in 1989. They found that his memory and ability to concentrate at work made it necessary for him to take demotion and a cut in pay and that this amounted to a substantial adverse effect relating to his normal day to day activities. This is particularly so because of the Respondent’s pride in being a perfectionist in work. After his move to a less responsible job in March 1990 he never lost the insomnia and flash backs that had preceded his first bout of depression. They found that the Respondent had a second bout of depression which culminated in him being unable to carry on and having to retire early. His memory and ability to concentrate were also affected and again the Tribunal found a mental impairment having a substantial adverse effect. They then concluded as follows: -
“Whilst the two episodes of depression might have been transient, section 2(2) of schedule 2 of the Act provides that the two instances of the same problem causing a substantial adverse effect are to be linked so that the Applicant’s difficulties can be treated as having a long term effect. Further, it is not as though the Applicant’s two instances of clinical depression are separated by lengthy periods of perfect health because it was clear from the evidence that although the Applicant was able to cope in the years between, he was still suffering from serious difficulties caused insomnia, tiredness and flash backs. In the light of the above the Tribunal finds that the Applicant fulfils all of the criteria set out in the Disability Discrimination Act 1995. He qualifies as a disabled person under the Act.”
 (Paragraph 3(c))

21	The Employment Tribunal does not explain its decision further but clearly based it upon Dr Lucas’ conclusion that there were two transient episodes of depression.

22	By letter of 28th November 2000 the Appellant’s solicitors asked the Tribunal to explain its decision. The Chairman replied on the 11th December 2000 stating that the Tribunal’s function ‘was to determine whether the Applicant was a disabled person under the Act and this could only refer to the second period of depression.’  

The Submissions.
23	The Appellant submits that the Employment Tribunal’s findings effectively set aside the conclusions of Dr Lucas in his report and his evidence. They do so without making any reference to his evidence in any detail or the basis upon which they had disagreed with it or distinguished it. Dr Lucas had concluded that the conditions of both PTSD and depression did not currently and should not in the future have a substantial long term adverse effect on the Respondent’s normal day to day activities including memory, ability to concentrate, learn or understand. The PTSD only developed after he had retired as Dr Lucas’ evidence makes clear, and the effect of his report is that the severity of both conditions as he found them were triggered by the reality of ill health retirement and frustrations in seeking further employment. One interpretation of paragraph 15 of his report was that the depression the Respondent had suffered in 1998 had ceased by December 1998 at which time medication and counselling were no longer necessary and the Respondent felt ‘upbeat’.

24	The Appellant relied upon the case of Kapadia-v-London Borough of Lambeth [2000] IRLR 699 where it was held that a fact finding tribunal is not obliged to accept uncontested medical evidence given to it, where, for example, it was clear that the medical witness had misunderstood the evidence which he was invited to consider in expressing his opinion, but where there was no direct challenge to the firm opinions which the expert witnesses expressed, their expert opinions could not reasonably be rejected. On the facts of that case the majority of the tribunal had sought to substitute for the medical opinion, their own impression of the Claimant. 
25	The Appellant further submits that Dr Lucas found that there were two episodes of depression and they were both transient. There was nothing in either his report or in his evidence to link the two episodes of depression which were many years apart and Dr Lucas did not describe a continuing condition.  Neither the Tribunal’s decision, nor their explanatory letter of 11th  December 2000, suggest that they were finding that the Respondent had a continuing condition. As to substantial adverse effect the Respondent had demonstrated high mental capacity consistently over a long period of time as evidenced by his extremely good appraisals over many years.

26	It was not clear, the Appellant submits, what findings the Tribunal was making as to the period of depression in each case so that it could be known whether it was long term. There were very few findings at all in relation to the second bout of depression. It was not clear what findings the Tribunal was making when finding that the Respondent was still suffering from insomnia, tiredness and flash backs between the two instances of clinical depression. There is no clear finding as to why the second bout of depression could be described as long term. It was not known when it started or when it finished. As the Tribunal accepted that both episodes of depression were transient and Dr Lucas’ evidence was to the effect that the more severe condition after retirement was not, and would not in the future have a substantial or long term adverse effect, there was no basis for finding either that period of depression or any less severe earlier period of depression, could properly be described as substantial or long term.

27	It may be, the Appellant contended, that the failure of the Tribunal to deal with the matter or explain its decision properly was because of its incorrect approach to the law. By stating as it did in paragraph 3(c) of its decision that:
“..the Act provides that the two instances of the same problem causing a substantial adverse effect are to be linked so that the Applicant’s difficulties can be treated as having a long term effect”
the Tribunal demonstrated a fundamental misunderstanding of schedule 2 of the Act. They failed to understand that a past disability must itself have a substantial and long-term adverse effect. Their misdirection could lead to the conclusion, for example, that two entirely separate bouts of serious influenza, or depression, as here neither of which were part of any underlying condition and neither of which were long term within the meaning of that expression under the Act, would nevertheless qualify as a disability under the Act. Such an apparent misunderstanding of the framework of the statute amounted to an error of law.

28	The failure to deal properly with the above issues in the decision amounted to a failure to comply with the requirements of Meek-v-City of Birmingham District Council [1987] IRLR 250.

29	The Respondent submits that whilst the Employment Tribunal may not have expressed its decision perfectly it did interpret the evidence properly and drew conclusions which were open to it. When Dr Lucas said that the depression had been ‘transient 1988-90 and 1998-2000’ that had to be read with paragraphs 1, 2 and 5 of his opinion. It then became clear that he meant that the Respondent had underlying depression and that that depression had became patent for those periods. The Employment Tribunal were therefore justified in concluding that the Respondent suffered a disability under the Act. This was the sensible interpretation of Dr Lucas’ report and the Tribunal’s conclusions.

30	‘Transient’ therefore meant islands of symptoms within a continuum of depression. Even if the Tribunal had expressed itself incorrectly as to the law in the first sentence of paragraph 3(c) of its decision, it mattered not as the evidence clearly demonstrated that there was depression with transient flare-ups. An inaccurate description of the legal test was therefore immaterial as the correct test was in fact satisfied.

31	As an alternative submission the Respondent contended that even if the Tribunal had misdirected itself in any material respect their overall conclusion was ‘plainly and unarguably right’ on the evidence and should therefore be upheld. (Dobie-v-Burns International Security Services (UK) Limited [1984] IRLR 329 and Bache-v-Essex County Council [2000] IRLR 251.)

32	The Respondent points to the fact that in its IT3 the Appellant did not dispute disability but denied discrimination and had, in correspondence, been prepared to accept that the Respondent had a long term sickness since July 1998. As the case of Greenwood-v-British Airways PLC [1999] ICR 969 required the tribunal to consider adverse effects up to the date of the Tribunal hearing itself, it was further demonstrated that the Employment Tribunal was correct in its decisions. It had to be borne in mind that the meaning of substantial was only ‘minor or trivial’ (Goodwin-v-Patent Office [1999] IRLR 4 and the Guidance A1).

33	As to Dr Lucas’ report and evidence there was no need for the Employment Tribunal to explain any disagreement with him, as there was, on a proper analysis, no such disagreement. In any event the authorities established that it was the task of the Tribunal not the medical expert to decide whether an impairment was or was not substantial. Vicary-v-British Telecommunications plc [1999] IRLR 680 and Abadeh-v-B.T. plc [2001] IRLR 23.

34	The decision, whilst not perfectly expressed, adequately complied with the requirements of Meek. An Employment Tribunal is not required to create ‘an elaborate formalistic product of refined legal draughtsmanship’. (Meek 251)

Decision.
35	There is force in the Respondent’s submission that we should not construe the Employment Tribunal decision as if it were a statute, but look at it, and the report and evidence of Dr Lucas in a practical and sensible manner. We have sought to do that but nevertheless come to the conclusion that the Employment Tribunal’s formulation of the law as to past disability was in error, and that this may have led to their inaccurate and incomplete assessment of Dr Lucas’ report and evidence and its significance.

36	The reference to schedule 2 of the Act in paragraph 3(c) of the decision shows that the Employment Tribunal was approaching the case on the basis that it was one of past disability. Their understanding that paragraph 5 of schedule 2, relating to section 2(2) of the Act enabled two instances of the same problem causing a substantial adverse effect to be linked so that they could be treated as having a long term effect, is incorrect. It suggests that they did not appreciate that past disability must itself have a substantial and long-term adverse effect. Their misunderstanding amounts to an error of law. It is not possible for this Tribunal to know what influence this error has had upon the decision as a whole but it is probable that it prevented them from analysing the evidence before them properly. They did not for example examine each period of depression in order to ascertain how long it lasted. Thus they did not explain whether by the word ‘transient’ they, or Dr Lucas, meant that the depression was transient within each period of depression or whether it lasted throughout each period, or whether there was a constant underlying state of depression with two islands of symptoms. It is not therefore possible to know whether the first period of depression came within the definition of ‘long term’ or not.

37	When the Tribunal was asked to explain its decision by the Appellant’s solicitors the Chairman indicated that their determination of whether the Respondent was a disabled person ‘could only refer to the second period of depression’. Whilst this response is not part of the decision and should not be construed accordingly, it certainly does not clarify matters. Neither the decision itself, nor the letter of explanation suggest that the Tribunal were intending to find that there was a continuing underlying condition of depression with islands of symptoms. Nor is there any clear medical evidence that there was such a continuing underlying condition. Without such a finding however it is difficult to see how the second episode of depression could properly be said to amount to a recurrence of the earlier condition. Nor, as we have stated earlier, is the evidence, or the decision clear as to the length of the second period of depression.

38	It is tempting, as the Respondent has sought to persuade us, to fill in the gap and conclude that, however imperfectly expressed, the Tribunal were intending to find that there was an underlying condition and the second episode of depression amounted to a recurrence of that condition. The Tribunal do not however state that this is their finding nor was it the only reading of the evidence before them. There is simply too much uncertainty as to precisely what the Tribunal intended to find.

39	As to Dr Lucas’ evidence we accept the submission that whether or not the adverse effects are substantial is a matter for the Tribunal to decide but where, in accordance with his joint instructions a doctor deals with the issue of substantial adverse effect and finds there to be no such effect, one would expect a Tribunal to comment upon this if it were disagreeing with that opinion, unless it was unaware that it was disagreeing.

40	If Dr Lucas, as appears to be the case from his report, considered the post retirement condition of the Respondent to be more severe than his earlier conditions and yet that those were still not ‘long term’ it is difficult to see how he could have regarded the earlier, less severe conditions to have been long term. Certainly his prognosis for the future was that those apparently more severe conditions would not be long term.

41	The Tribunal does not comment upon Dr Lucas’ views upon this issue in its decision. This in our view demonstrates a failure to analyse the evidence properly and to explain their decision properly. We do not consider that this decision does comply with the requirements of Meek as it does not enable the Appellant to know why he lost.

42	We do not regard the evidence before the Tribunal as a whole to be sufficiently clear to enable the Respondent to argue that, however imperfectly expressed, the Tribunal’s decision was ‘unarguably right’. The evidence does not enable one to come to such a clear conclusion. This is so even when we have stood back from the decision and sought to take a practical and sensible view both of the evidence and the manner in which the Tribunal expressed itself.

43	We conclude that this is a case where the lack of clarity in the decision and the analysis of the medical evidence by the Tribunal amounts to errors in law which necessitate the rehearing of the matter. The appeal is therefore allowed.

44	As to remedy we reject the Appellant’s submission that the finding of disability must fall. Neither the evidence nor the decision are sufficiently clear for any such firm conclusion to be reached. We consider that the only appropriate course is for the matter to be remitted to a fresh Tribunal for a rehearing of the preliminary issue as to disability. We consider it would be appropriate in the circumstances for the whole case to be heard by the fresh Tribunal with the issue of disability to be decided first, and if determined in favour of the Respondent, the full hearing on the issues of unlawful discrimination and unfair dismissal or breach of contract to continue immediately afterwards. 

45	We suggest that a letter is sent to Dr Lucas on behalf of the parties asking him to deal with their various additional questions, such as how long each period of depression lasted, approximately when it started and when it finished within each period and what he meant by ‘transient’ in his report. Did either of the periods, or any part within them last 12 months or more. He should also be asked whether the Respondent had an underlying continuing condition of depression which flared up again in 1998/2000, or whether the two periods of depression were separate and distinct, the second occurring some years after the Respondent had recovered from the first. The answers to these questions may well enable the preliminary issue of disability under the Act to be determined without recourse to a further hearing. If the parties are unable to agree the form of letter to be sent to Dr Lucas we suggest that the fresh Tribunal orders that a letter asking these and any other appropriate questions be sent to Dr Lucas, who is and should remain the sole joint expert.