Appeal No.UKEAT/0032/04/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 July 2004

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR R LYONS
PROFESSOR P D WICKENS OBE

MR M J WILSON	APPELLANT

SOUTHERN COUNTIES FUELS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A FREER
Solicitor
Messrs Pattinson & Brewer Solicitors
71 Kingsway
London WC2B 6ST	
For the Respondent	MR P SPENCER
(of Counsel)
Instructed by:
Messrs TWM Solicitors
The Tunsgate
128 High Street
Guildford
Surrey GU1 3HH	

SUMMARY

Disability Discrimination

Dismissal of claim for disability discrimination on basis that Applicant not disabled.

(i) No perversity and proper application of Morgan in finding that the mental impairment was not a clinically well-recognised illness.

(ii) It is inappropriate to give a rolled-up answer to the 3 questions of (a) effect on day to day activities (b) substantial (c) long term. But in the light of finding on (i) appeal fell to be dismissed.

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1	This has been the hearing of an appeal by the Applicant, Mr Wilson, represented today by Mr Freer, solicitor, who did not appear below, when he was represented by Miss Criddle of Counsel, against the unanimous Decision of the Employment Tribunal at Brighton, after a hearing on 2 October 2003, in Reasons handed down on 8 October, that, on a preliminary point, he was not disabled within the meaning of section 1 of the Disability Discrimination Act 1995 (the DDA) at the time of his dismissal.  The Respondent was represented below by Mr Spencer, of Counsel, who has also appeared before us.  

2	In the light of that Decision, namely that the Applicant was not disabled, his claim under the DDA fell away.  He had made a claim by an Originating Application which asserted that he suffered from a disability in the form of mental health problems (we quote paragraph 1 of Box 11 of the Originating Application):
“ which have been described as anxiety, paranoia and depression that are treated with medication.”
He contended, in paragraph 3 of the Originating Application that he
“became ill initially with viral ’flu and was off work for a period of three weeks from 27 December 2002.  The Respondents failed to consider this in dismissing the Applicant.  The Applicant then developed severe anxiety and was signed off for a further month by his General Practitioner.”
In paragraph 4 of the Originating Application, he asserted that:
“during his interview for the position with the Respondents, [he] made it very clear that he was suffering from mental health problems and that he continued to do so.  During his time with the Respondents the Applicant asserts that he had no significant time off and he worked hard and had two good annual appraisals.”

3	In a letter which the Respondent wrote on 4 February 2003 to Dr Casares, the Applicant’s GP, acknowledging her letter of the same date, the Respondent asserted that:
“Until receipt of it, we were unaware that Michael has a lifelong problem of chronic anxiety.
Clearly, we hope that Michael will be fully capable of resuming his work.  I thought it might be helpful if I briefly set out what may be pertinent issues:”
And then they set out the substantially demanding work which the Applicant had in fact, so far as they were concerned, satisfactorily performed.

4	The Tribunal rested its conclusion that the Applicant was not disabled on a conclusion that he failed to establish that he suffered from a relevant mental impairment.  By the time of the hearing, his case was supported, in circumstances to which we will refer, by a letter from his GP, Dr Casares.  Dr Casares, in that letter dated 1 September 2003, saying that she had known the Applicant since February 2002, recited:
“Mr Wilson suffers from chronic depression and anxiety disorder which are well-recognised mental health conditions.”
The Tribunal addressed the point in paragraph 4 of its Decision, when it said as follows	:
“The claim by the Applicant is that he comes within the definition of having a disability pursuant to … DDA  because he suffers from a mental impairment, namely chronic depression and anxiety disorder, giving rise to a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.  Paragraph 4(1) of the Schedule to the DDA states that an impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following matters then specified, and Miss Criddle identified (a) mobility and (g) memory or ability to concentrate, learn or understand.”

5	The first basis on which the Tribunal ruled against the Applicant was by reference to the issue of mental impairment.  Section 1 provides as follows:
“1. - (1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this 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 Schedule 1, paragraph (1), of the Act, there is particular provision made in relation to mental impairment as follows:
“ “Mental impairment” includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness.”
The Tribunal concluded that he was not suffering from a clinically well recognised illness.  That is effectively issue one before the Tribunal and before us.  

6	The Tribunal, having so concluded, continued on at paragraph 15 of its Decision as follows:
“That would be sufficient to dispose of the matter but in case we are wrong, we think it fair to consider whether, in our view, there is a substantial adverse effect caused by some impairment, which we take to be depression and anxiety, on the Applicant’s ability to carry out normal day-to-day activities.”
The Tribunal concluded that the Applicant did not satisfy that onus either, and that is issue two before us.  It is common ground before us that if the Applicant does not succeed on issue one then his appeal fails, although in any event we have gone on to consider issue two.  The Applicant himself gave evidence and was cross-examined and produced his medical notes.  We shall return to his witness statement when we come to consider issue two.  

7	So far as issue one is concerned, there was no witness present at the Tribunal to support his case that he had a relevant mental impairment.  The letter, to which we have referred, from Dr Casares, was just three pages.  It plainly did not begin to comply with the recommendations of the Employment Appeal Tribunal per Lindsay P in De Keyser Ltd -v- Wilson [2001] IRLR 324.  The Respondents objected to the Applicant’s reliance on the letter on three grounds in descending order of importance.  

(1) The report did not disclose whether the GP had any qualifications at all to express views about whether the Applicant had a mental impairment.
(2) It was not in a form which complied with De Keyser Ltd -v- Wilson, there being no disclosure of what instructions the expert, if expert she was, had received and/or did not contain any statement of truth.  
(3) She did not attend the Tribunal to support her report and be cross-examined.  Of course, the position so far as the Employment Tribunal is concerned is that it will take evidence from witnesses who do not attend, not being so bound by the rules of evidence as an ordinary court, but it inevitably tends to detract from the force of evidence if it cannot be tested by the Respondent.  

8	The Tribunal decided to take account, nevertheless, of the evidence of Dr Casares.  In paragraph 9, the Tribunal said as follows:
“In support of the claim, Miss Criddle relies on a report …. from Dr Casares addressed to the Applicant’s solicitors ….. Dr Casares is clearly a registered medical practitioner and general practitioner and indicates she has specific qualifications or diploma as a general practitioner and also in obstetrics and child health.”
In paragraph 11, after reciting Mr Spencer’s criticisms, it concluded:
“Notwithstanding those deficiencies, we accept the report for what we consider it to be, namely a report by the Applicant’s general practitioner, who we would expect to have some familiarity with common psychiatric and mental illness conditions.”

9	The reason why Parliament has treated, in the DDA, mental impairment differently from physical impairment is perhaps not hard to understand.  First, the existence of a physical impairment is much easier to prove, and to establish, and to describe, than a mental impairment.  Secondly, and for that reason, it is much more difficult to analyse whether if a mental impairment exists, it has effects on a person, not least because so often the consequences of a mental condition are difficult to describe or comprehend.  

10	Consequently, the guidance that is given by the statute, and helpfully amplified in the case of Morgan -v- Staffordshire University [2002] IRLR 190 per Lindsay P, directs a Tribunal that if not the only, certainly a very sensible way of understanding whether there is a clinically well-recognised illness, is by reference to the well established and admired International Statistical Classification of Diseases and Related Health Problems, published by the World Health Organisation in Geneva.  In the case of Morgan, it was made entirely clear that that is not the only way in which to establish that a clinical illness is well recognised, but it certainly is the normal and most convenient way to do it.  
11	The problem, that was no doubt faced by Parliament, and is certainly faced by the discussion in Morgan, is that sadly many people suffer from anxiety, depression, stress, restlessness, irritability, feelings of hopelessness and other mental problems, just as many people have influenza or other physical illnesses, or can feel, for physical reasons, under the weather.  In order for the Applicant in question to prove that he is disabled, there has to be more than that; hence the existence of Schedule 1(1).  

12	It is clear that Dr Casares, who does not assert any qualification or experience of her own, although as we have indicated, the Tribunal was prepared to accept that, like many GPs, she will have had experience of patients suffering from anxiety and depression, sought to root her evidence in the World Health Organisation document, the WHO ICD, to which she makes very brief reference in her report, as we shall indicate; but what she does not do is expressly refer to it for the purpose of defining the clinically well recognised illness which she asserted that the Applicant suffered from.  As we have indicated, she defined the problem, so far as the Applicant was concerned as “chronic depression and anxiety disorder”.  

13	The Tribunal referred to her report as follows, in paragraph 12 of the Decision:
“[The report] goes on to describe the symptoms of depression which can be manifested and in that context refers to the International Classification of Diseases before specifying which of those symptoms are shown by Mr Wilson during exacerbations of his depression.”

There are then criticisms of the bundle, which we do not need to deal with, and to some of the notes, to which we have not been taken on this appeal.  

14	In paragraph 13 the Tribunal continued:
“Not unnaturally Mr Spencer has challenged the basis upon which this case is brought and Miss Criddle said to us that first of all we ought to look at the ICD because it is referred to in the report of Dr Casares.”

The Tribunal then continued as follows:
“However, it is clear from Morgan that diagnosis such as anxiety or depression will not suffice as being within that classification and we have no evidence that chronic depression comes within such a classification and, indeed, one would have assumed, if it did, somebody would have demonstrated that to us.”
That has formed the central part of the discussion before us on this appeal.  In paragraph 14 the Tribunal referred to the “fall back argument” of Miss Criddle, which has not been the subject matter of argument before us, and it then concluded:
“We are not satisfied that we have had substantial and specific medical evidence of a mental impairment which neither results from nor consists of a mental illness.  Nor are we satisfied we have proof by other means of a medical illness recognised by a respected body of medical opinion.”

15	The central passage of the judgment of Lindsay P in Morgan is contained in paragraphs 19 and 20, which, in material part, read as follows:
“19.	That Mrs Morgan could perhaps have satisfied the Tribunal that she had at some material time suffered from a clinically well-recognised illness is evident from a letter she obtained from Dr David Loughney on 2nd October 2001.   It speaks of her suffering from “clinical depression” and that her mild depression of the past had been made worse by the assault.   Even so, doubt remains because the WHO ICD suggests the need (for example, under “Generalized Anxiety Disorder”) for primary symptoms to be expected most days and usually for months and (for “Post-Traumatic Stress Disorder”) “there must be repetitive, intrusive recollection or re-enactment of the event in memories, daytime imagining or dreams.   Conspicuous emotional detachment, numbing of feeling ..... are often present but are not essential for the diagnosis”.   If what is being attempted is a claim to fall within a WHO ICD category then “clinical depression”  without more is insufficient.   The work has no such simple category….”  
In paragraph 20 Lindsay P said as follows:
 “20.….. Whilst the words “anxiety”, “stress” and “depression” could be dug at intervals out of the copies of the medical notes put before the Tribunal, it is not the case that their occasional use, even by medical men, will, without further explanation, amount to proof of a mental impairment within the Act, still less as its proof as at some particular time.   Even G.P.s, we suspect, sometimes use such terms without having a technical meaning in mind and none of the notes, without further explanation, can be read as intending to indicate the presence of a classified or classifiable mental illness, either after the exacerbating events of the assault proceedings were over or at all.” 
And then, general observations, which Mr Freer described as guidelines, were set out, with which he indicated he did not take issue.

16	The first is that advisers to parties claiming mental impairment must bear in mind that the onus on a claimant under the DDA is on him to prove that impairment on the conventional balance of probability.  At sub-paragraph (3) the guidelines say:
 (3)	As the WHO ICD does not use such terms without qualification and there is no general acceptance of such loose terms, it is not the case that some loose description such as “anxiety”, “stress” or “depression” of itself will suffice unless there is credible and informed evidence that in the particular circumstances so loose a description nonetheless identifies a clinically well-recognised illness.   In any case where a dispute as to such impairment is likely, the well-advised claimant will thus equip himself, if he can, with a writing from a suitably qualified medical practitioner that indicates the grounds upon which the practitioner has become able to speak as to the claimant’s condition and which in terms clearly diagnoses either an illness specified in the WHO ICD (saying which) or, alternatively, diagnoses some other clinically well-recognised mental illness or the result thereof, identifying it specifically and (in this alternative case) giving his grounds for asserting that, despite its absence from the WHO ICD (if such is the case), it is nonetheless to be accepted as a clinically well-recognised illness or as the result of one.
There are other guidelines set out of importance, with which we do not need to deal today.  

17	It is apparent that Dr Casares was not seeking to refer to, and seek to establish, not least because of her lack of qualification, some clinically well recognised mental illness other than specified in the WHO ICD, if only because she would have to have given the kind of explanation which Lindsay P there provides for; and insofar as this formed part of Miss Criddle’s fall back argument, it has not been the subject of appeal before us.  

18	What Mr Freer has sought to submit is that the Tribunal erred in two respects: (1) that it was perverse in not concluding that, on the evidence before it, namely the letter from Dr Casares, there was a clinically well recognised illness falling within the WHO ICD, or (2) the Tribunal in some way misapplied or misunderstood the guidance in Morgan.  So far as the latter is concerned, he concentrated on paragraph 19 of the judgment in Morgan, referring to the statement “If what is being attempted is a claim to fall within a WHO ICD category then “clinical depression” without more is insufficient.  The work has no such simple category…”  He referred us to the WHO ICD.  This was before the Tribunal, albeit that there is some dispute, which we cannot resolve, as to the use of it made by and before the Tribunal, but we are content to allow Mr Freer to argue his case both of perversity and of law, as if the document was, or should have been, fully appreciated by the Tribunal.  

19	He submits that, contrary to what was stated by Lindsay P in that paragraph, there is a category in the WHO ICD, a simple category, of depression, and/or that in any event, unlike in Morgan, here two diagnoses were put forward by Dr Casares, clinical depression and anxiety disorder.  F32 in the WHO ICD, which is, as we shall indicate, not referred to by Dr Casares in her report, is called “Depressive episode”.  Under F32 there are then separate sub-categories: F32.0 Mild depressive episode; F32.1 Moderate depressive episode; F32.2 Severe depressive episode without psychotic symptoms; F32.3 Severe depressive episode with psychotic symptoms and F32.8 “Other depressive episodes”.  Under “F32.9 Depressive episode unspecified” there are stated the simple words: “Depression NOS “(“NOS” apparently meaning ‘not otherwise specified’) and “Depressive disorder NOS”.  Insofar as any assistance can be derived from that categorisation of F32.9, Mr Freer is right to say that in that one place, the word “depression” is used on its own.  

20	So far as anxiety disorder is concerned, there is F40 with the description ‘Phobic anxiety disorders’, which he does not suggest is relevant to our consideration, but then under F41 there are the words “Other anxiety disorders”.  There is an important premise to F41 which we should read:
“Disorders in which manifestation of anxiety is the major symptom and is not restricted to any particular environmental situation.  Depressive and obsessional symptoms, and even some elements of phobic anxiety may also be present, provided that they are clearly secondary or less severe.”
There is then an option, as there was under F32, of different sub-categories.  “F41.0 Panic disorder; F41.1 Generalised anxiety disorder; F41.2 Mixed anxiety and depressive disorder; F41.3 Other mixed anxiety disorders; F41.8 Other specified anxiety disorders, under which the words “anxiety hysteria” are stated and F41.9 Anxiety disorder, unspecified, under which are the words “Anxiety NOS”.

21	We are entirely satisfied that the Tribunal did not err in law in its approach towards Morgan and/or did not misunderstand Morgan, and, insofar as it is suggested that Morgan was not correct, by reference to the statement in the judgment of Lindsay P that we have quoted, there is indeed no such simple category in WHO ICD as “clinical depression” without more.  What is required is for a medical report, if such there be, to bring someone who is, or has been, suffering from depression within one of the clinically well recognised illnesses.  

22	In paragraph 13, in the passage to which we have referred, the Tribunal was simply saying that it was clear from Morgan that diagnosis such as anxiety or depression would not suffice as being within that classification, and we, with respect, agree with that.  They continue:
“we have no evidence that chronic depression comes within such a classification and, indeed one would have assumed, if it did, somebody would have demonstrated that to us.”
On the basis that there was no reference by Dr Casares to F32.9, or as to its ambit and as to how it fitted within the totality of F32, the Tribunal are to that extent right.

23	We turn, however, leaving aside questions of law, to whether the Tribunal was perverse, in the light of the evidence of Dr Casares, in failing to conclude that, at any rate so far as anxiety disorder was concerned, even if not chronic depression (if chronic depression is to be interpreted as within F32.9 “Depressive episodes unspecified”) the Applicant should have been found by the Tribunal to fall within such category.  

24	The problem for the Applicant starts with the fact that Dr Casares does not have relevant qualifications and therefore if she was, simply in the light of her experience with depressive patients, to give an opinion, it must have had to have been, by reference to the clear picture given of the Applicant, coupled with a clear description of a relevant category within WHO ICD, a bringing of this Applicant within the field of a specific well recognised clinical illness.  We have already read the passage in Morgan at paragraph 20 subparagraph (1) and (3) which makes that course plain.  But a failure to comply with guidelines is only a bad start, not a conclusion, and at the instance of Mr Freer, we have sought to see whether in fact this Tribunal was bound to have concluded, however it was in particular expressed by Dr Casares, that this Applicant fell within a category of the WHO ICD.  

25	We deal first with clinical depression.  In her report, Dr Casares sets out a list of “Symptoms of depression” which looks like a checklist, and is certainly a very schematic and formulaic list, which ends with the words “(ref: International Classification of Diseases)”.  She then sets out, underneath that, “Symptoms of depression shown by Mr Wilson” and, again in formulaic manner, some of those symptoms are ascribed to the Applicant.  

26	We are entirely satisfied that that is wholly insufficient for us to conclude that the Tribunal was perverse not to find, not to speak of our being persuaded, even if it was our decision, to find that the Applicant fell within a category in the WHO ICD.  The only one, as we have indicated, could possibly be the mysterious F32.9.  We sought to find out from Mr Freer, but quite clearly he would have no better idea than us, where Dr Casares can have got her checklist from.  At least it would be a start if she had either referred to F32 or to F32.9, or copied out their contents in some way.  But the checklist which she has set out does not come from F32, and at best, as Mr Freer submitted, it must be some kind of paraphrase.  Certainly Dr Casares says, as we have indicated, after the checklist “(ref: International Classification of Diseases)”; but she does not indicate what part of the document she is seeking either to quote or to paraphrase.  We are entirely satisfied that the Tribunal neither erred in its approach, as we have indicated, nor was perverse in concluding that they were not satisfied that the chronic depression, with or without the symptoms indicated by Dr Casares, did not bring the Applicant within any well recognised clinical illness, or certainly not F32.  

27	It is right to say that criticism is made by Lindsay P in Morgan of some medical notes, and indeed it applies in this case, as we have been shown, because in the GP’s notes there are references to anxiety and depression and chronic depression, and indeed on one occasion to “paranoid”, which does not appear anywhere else to be supported, without further categorisation.  But such criticism cannot of itself apply, at least in regard to the use by Dr Casares of the words “anxiety disorder” in her report, because that at least has the capability of being one of the illnesses within the WHO ICD.  Unfortunately, however, once again she has not indicated which well recognised clinical illness within WHO ICD is indicated, whether it is intended to be F41.9 or otherwise; and she does not even, in relation to her checklist of the features of anxiety, use the words “(Ref: International Classification of Diseases)” as she did in relation to depression.  

28	Further, the checklist which she sets out under “Features of anxiety” bears little relationship with the symptoms which are listed under F41; indeed there are some, for example, “Frequency of micturition” which do not feature at all.  Whether these are alleged features or symptoms drawn from her own experience, or drawn from other literature, is unclear, but certainly she does not appear to have been using the WHO ICD as her reference base, as she must do if she wants to get the Applicant within one of the categories of the WHO ICD.  

29	There is the further problem, in relation to anxiety disorder, of the premise to F41 which we recited above; and there is certainly no indication here that the necessary qualification laid down by WHO ICD for someone to fall within an anxiety disorder within F41, namely that the manifestation of anxiety is the major symptom, and that any depressive elements are clearly secondary or less severe, is not even addressed, never mind satisfied.  We are clear, in those circumstances, that the Tribunal was perfectly entitled to come to the conclusion it did that the Applicant had failed to prove that he fell within paragraph 1(1) of Schedule 1 of the Act, and for that reason, this appeal must fail.  

30	We turn, however, to issue two, in any event, because we have been addressed upon it.  The Tribunal deals with its Decision in this regard in the following paragraphs, after paragraph 15, which we have already cited above.  
“16  The Applicant points out in his evidence that without his medication he finds it very difficult to concentrate.  Obviously, having regard to paragraph 6 of Schedule 1 we have to ignore the beneficial effect of medication.  We accept that an inability to concentrate can come within paragraph 4 of Schedule 4.  The Applicant says that he withdraws, becomes unpleasant, uses obscene language and becomes obsessed with getting his work done, and is made to feel very ratty.  Frankly, the evidence he gives, which we are prepared to accept on the primary matters, is not such as to lead us to believe that there is a substantial adverse effect on his ability to carry out normal day-to-day activities. 
17.  It would seem that the Applicant was able to hold down a job with the Respondents for a period of some two years and that there was a deterioration following a viral infection in December 2002, such viral infection never having been fully cured and recurring again from time to time.  The Applicant does not agree that that viral infection has contributed to any inabilities he has suffered, but we consider it highly likely that it has.  However, even having heard a description of what he has suffered and his inability at the relevant time, we do not consider that amounts to a substantial inability to carry out day-to-day activities.”

It is quite apparent that the Tribunal dealt with issue two in a brief way, and in an entirely subsidiary way, given that it had already made up its mind on issue one, but it was indeed, helpfully, going on to deal with issue two, as one would expect any sensible Tribunal which had the evidence to do.  

31	We conclude, having heard argument from both parties that, albeit brief, this was an inadequate way for the Tribunal to have approached the problem.  There are in fact three questions to be answered, rolled up within section 1 of the Act, once the conclusion has been reached that there is a physical or mental impairment.  The first question is whether there is an effect on the Applicant’s ability to carry out normal day-to-day activities.  The second is whether that adverse effect is substantial, and the guideline in fact is given by the Guidance relating to the definition of disability, issued on 31 July 1996 by the Secretary of State, which provides at paragraph A1 that, for this purpose, a substantial effect is one which is more than “minor” or “trivial”.  The third is that that substantial adverse effect must be long term.  

32	In the passage to which we have referred, the Tribunal recited that the Applicant had pointed out in his evidence that without his medication he found it very difficult to concentrate.  That is a reference to paragraph 5 of his witness statement.  It is unclear to us, as it would no doubt have been unclear to the Tribunal, on what the Applicant would be basing such a statement, if in fact he had always taken his medication.  It is always a difficult task for a Tribunal to carry out the duty it has to carry out of ignoring, pursuant to paragraph 6 of Schedule 1 of the Act, the effect of medication; but in any event, the Applicant went on in later paragraphs of his witness statement to state that even with his medication he had difficulties with his concentration, especially if he was put under a lot of pressure, and on occasions he would not be able to remember what he had said and his mind would go blank - see paragraphs 7, 8 and 16 of his witness statement.  

33	It is not clear whether the Tribunal were accepting those paragraphs when it refers to “the evidence he gives, which we are prepared to accept on the primary matters”.  For the purpose of this appeal we must assume that the Tribunal was accepting those paragraphs.  In those circumstances, there was some effect on his ability to carry out normal day-to-day activities, but the Tribunal did not say so in terms.  The Tribunal effectively seems to have decided the matter on a rolled-up basis, although it did not expressly refer to the question of long-term effect, to which we have already referred.  

34	It seems to us possible that, in paragraph 17 of the Tribunal’s Decision, when it refers to the viral infection, of course we have already read what the Applicant himself said in his Originating Application, that it was implying that, insofar as there was a period when, as indeed Dr Casares herself accepted in her report, his condition was exacerbated by the viral condition, the effect on his day-to-day activities was then substantial, but that, because it only resulted from the effect of the virus, the substantial effect was not long-term but short-term.  It may be that that is what the Tribunal meant when it said that the viral infection had “contributed to any inabilities he has suffered”; but we are only able to infer that from the Tribunal’s reference to the viral infection, which indeed, as Mr Freer submitted, would seem, unless that is the right answer - which he does not accept - would have been an irrelevance.

35	It would certainly have been far clearer if the Tribunal had said, if that is what they meant: “by reference to the relevant paragraphs of the witness statement we accept there was some effect, but, except during the period when it was exacerbated by the viral infection, which was only short-term, such effect was not substantial, in the sense of not more than minor or trivial”.  Once again, the problem is that the Tribunal has not made specific reference to the guideline at A1, nor used the words “minor” or “trivial”.  

36	The conclusion the Tribunal came to was what we have called a ‘rolled-up’ conclusion.  It might well have been entitled to come to the conclusion which we have indicated, had this been the matter of separate appeal; and, had the appeal not already been disposed of by virtue of our decision on issue one, we might have been persuaded to send this question back to the Tribunal to ask again, although that would have been an issue on which we would have invited further argument, because a case is not sent back where it is clear what answer the Tribunal would have come to.  But in the event, this issue does not arise for consideration.  

37	We do however take the opportunity to remind Tribunals that there are three questions, which are best taken separately, as opposed to dealing with them in the rolled-up form, in which this Tribunal dealt with it.  But in the circumstances, the issue is not determinative of this appeal, and we make no finding in regard to it.  For the reasons we have given in relation to issue one, this appeal is dismissed.