Appeal No. EAT/0641/02/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 March 2003

Before
HIS HONOUR JUDGE J McMULLEN QC
MRS M McARTHUR
MS G MILLS

MRS P JEFFERSON	APPELLANT

WOLSELEY CENTRES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS C O'DONNELL
(of Counsel)
Instructed By:
Ripon Citizens Advice Bureau
5 Duck Hill
Ripon HG4 1BL	
For the Respondent	MR B CARR
(of Counsel)
Instructed By:
Messrs Eversheds
Solicitors
Cloth Hall Court
Infirmary Street
Leeds LS1 2JB	

JUDGE J McMULLEN QC:

1	This case is about the definition of disability.  It is an appeal from a decision on a preliminary point of an Employment Tribunal sitting at Leeds on 24 April 2002, Chairman, Mr C.T. Grazin, registered with Extended Reasons on 2 May 2002.  We will continue to refer to the parties as Applicant and Respondent.  

2	The Applicant was represented by the CAB, the Respondent by a solicitor.  Today both parties represented by Counsel agree this appeal should be allowed by consent.  

3	We have carefully considered the material put before us by way of Notice of Appeal. Respondent's Answer and Skeleton Arguments.  We consider it is entirely proper for the Respondent to concede the appeal and to agree to it being remitted, with no further evidence to be taken, to the same Employment Tribunal unless the Regional Chairman considers this to be impracticable.  Because we are overturning a decision, by consent, we will give short reasons.

4	The Applicant was employed by the Respondent as an inventory clerk from 1987.  She found that work difficult and was unable to work on a number of occasions between 1992 and 2000 due to pressure.  The Applicant claimed that she was a disabled person within the meaning of the Disability Discrimination Act 1995.  The decision of the Employment Tribunal was that she was not and, therefore, the disability claim was dismissed, but her claim for unlawful deduction of wages was ordered to proceed.  

5	The central components of the definition of disability appear to have been met, since the Tribunal found that the Applicant was suffering from an impairment, which created substantial and long-term adverse effects on her ability to carry out her normal day-to-day activities.  As it indicated, the real issue was whether she had a mental impairment.  The Tribunal considered medical evidence adduced by each of the parties.  The medical evidence is important in this case.  

6	The Tribunal had before it reports from the Applicant’s GP dated 31 January 2002 and 22 February 2002, together with a stream of medical certificates, all pointing to the diagnosis of stress and depression.  

7	The Tribunal was referred to Morgan v Staffordshire University [2002] IRLR 190, EAT Lindsay P and Members, and considered the guidance given.  At a preliminary hearing before Mr Recorder Timothy Brennan QC and Members, it was ordered that one sole ground might advance to a full hearing, and that is the one we have defined above.  The Tribunal’s reasoning appears on page 5, paragraph 10, of its Reasons:

“The best that the Applicant can do in this matter is to point to the second report of Dr Burton.”

8	Her representative, no doubt, appreciated the difficulty of reliance upon the first report.  She therefore asked Dr Burton to deal with the statutory definition, in answer to which Dr Burton said that the Applicant was suffering from “clinically well recognised conditions”.  She did not say, as the EAT in Morgan suggests is a necessary minimum, that the Applicant was suffering from a “clinically well recognised illness”.  Not every clinically well recognised condition is a mental illness within the statutory definition: fracture of the femur is a well recognised condition but is not a mental illness.

9	In our judgment the Tribunal misdirected itself as to the requirement for a practitioner to have used the word “illness” rather than “condition” in order to satisfy the statutory test.  In any event, had the citation from the GP’s report continued, it would have included in the next but one sentence to that cited, the phrase “The symptoms of this illness ... .”  Thus, no magic is attached to the word “illness” or “condition”, either by the GP or by Morgan.  

10	It seems, therefore, that even if the Tribunal were right to take such a narrow view of the language required by the statute, it overlooked the fact that the GP was happy to equate condition with illness.  It will be noted that in Rugamer v Sony Music Entertainment [2001] IRLR 644 EAT, Mr Commissioner Howell QC used interchangeably diagnosable clinical condition with impairment and said, for example:

“As is apparent an ‘impairment’ for the purposes of the Act may thus include medical ‘conditions’ of various kinds.”

And used other forms of words which in our judgment do not require, as a requirement, the use of the word “illness”.  As Morison P said in Goodwin v Patent Office [1999] IRLR 4 EAT:

“The expressions “illness” and “impairment” in this context are each to be construed relatively broadly. ... What is we think clear is ... that, short of satisfactory medical evidence of a diagnosed or diagnosable clinical condition or other mental disorder of a recognised type.”

11	Thus it seems to us that there is no imperative, as the Tribunal thought, which derives either from Morgan or from Rugamer which requires a specific attribution of the term “illness” to the impairment.  But, even if those authorities are incorrect, it seems to us that the Tribunal has failed to correctly to construe the opinion of the GP herself when she used the words “the symptoms of this illness”.

12	This is a case which it is proper to allow, by consent, and it is appropriate, both parties agree, for the matter now to be determined by the same Employment Tribunal to determine the preliminary issue according to our direction.  

13	We will also exercise our power under Section 35 of the Employment Tribunals Act 1996, to make three corrections to the record.

(1)	The title is “Wolseley Centres Ltd”:  see page 1 of the Decision.
(2)	The date appearing at paragraph 4, on page 2 of the Reasons, is 22 February 2002.
(3)	Paragraph 10, where it first appears in the Reasons on page 4, is to be renumbered 9A.

14	We are grateful to the parties for the expeditious way in which they have handled the hearing.  This appeal is allowed