Appeal No.  UKEAT/0322/09/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 October 2009

Before
HIS HONOUR JUDGE HAND QC
MS K BILGAN
MRS R CHAPMAN

MR D WIGGINGTON	APPELLANT

Mr N J Cowie, Mrs S Cowie and Mr S Cowie
t/a Baxter International (A Partnership)	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - APPELLANT ONLY

	APPEARANCES

For the Appellant	MS V HUNT
Swain & Co Solicitors
3-5 South Street
Havant 
Hampshire  
PO9 1BU	

HIS HONOUR JUDGE HAND QC
Introduction
1.	This is a proposed appeal from the judgment of an Employment Tribunal comprising Employment Judge Craft and two lay members sitting at Southampton on 11 December 2008 and 28 January 2009 with a deliberation day on 11 March 2009 whereby it was held that the potential Appellant was not disabled and therefore his claim was dismissed.  The issue of disability had been taken as a preliminary point.  The matter came before Bean J in the sift procedure under the Practice Directions and he ordered the matter be heard at a preliminary hearing with the potential Appellant only to attend.  Today the potential Appellant has been represented by Ms Hunt.

The Facts
2.	The Employment Tribunal directed itself that it had to consider the potential Appellant’s impairment as at 22 August 2007, that is to say the date of dismissal, and ask itself whether at that date there was impairment, which qualified under the definition of disability in the Disability Discrimination Act 1995.  The potential Appellant had started working for the Respondent on 26 October 2006.  He alleged that he was already suffering from disability at that time.  The Employment Tribunal rejected that, finding at paragraphs 52 and 53 of the judgment that there was no evidence to support his claim that he was disabled at the time his employment commenced.  On 12 December 2006 he was involved in a road traffic accident, which he said exacerbated existing problems and caused other difficulties.  He suffered from, amongst other things, muscular skeletal pain, chronic fatigue syndrome, post traumatic stress disorder, eye problems, a driving phobia and an adjustment disorder.  The case put forward by the Respondent at the Employment Tribunal was that it had been completely unaware of any disability therefore it cannot have dismissed by reason of disability.  Therefore, the employer disputed that the employee was disabled when he was dismissed, on two grounds; firstly that such a disability as the evidence before the Employment Tribunal revealed was not substantial, and secondly that it had not lasted for 12 months nor was it likely to last for 12 months at the relevant time and therefore was not long-term.

3.	The Employment Tribunal recorded at paragraph 15 of the judgment at page 4 of the bundle that the hearing had been conducted so as to make allowance for the potential Appellant’s difficulties.  He had been told to ask for a break if he wanted one.  Also the Employment Tribunal recorded that the Appellant appeared to have a substantial grasp of the issues in the case.

4.	There are really two issues in the appeal.  The first relates to the conduct of the proceedings.  In an affidavit that occupies pages 53 to 59 of the bundle and which was sworn on 6 August 2009 the potential Appellant has set out a large number of allegations, which complain of the conduct of the hearing by the Employment Tribunal.  It is not an issue that the potential Appellant was told that he could ask for breaks and he says that the Employment Tribunal were helpful and considerate on the first day.  It seems that there may have been one break on the first day.  This is all dealt with by a note from the Employment Judge attached to a letter dated 29 September 2009 and supplemented by email comments from one lay member dated also 29 September 2009.  The other lay member is in Singapore and cannot be contacted.  The email from the lay member corroborates to an extent what is said by the Employment Judge.  The lay member does not have as much recall of matters as the Employment Judge and indeed it seems likely that she has forgotten that there was a break taken during the first day.  This is something asserted by the potential Appellant and accepted by the Employment Judge.

5.	The issue therefore really resolves itself into a conflict as between the recollection of the Employment Judge and the recollection of the proposed Appellant as to matters that occurred on the second day.  A number of the proposed Appellant’s complaints in relation to the second day can be summarised by saying that he got the impression both from what was said and the way in which the Employment Tribunal conducted itself that the Employment Tribunal was driving on so as to finish the evidence and submissions in the case by the end of the second day.  He says that this put him under pressure and that it means that a number of factors that he wished to deal with in greater detail were either restricted expressly by the Tribunal or he was inhibited in pursuing them because of the atmosphere that was created.  The Employment Judge denies that there was any statement as to the need to finish by the end of the second day, and as I understand it, either expressly or implicitly denies that there was any repeated looking at watches or expressions of urgency.

6.	We have been told by Ms Hunt that the proposed Appellant has considered the note of the Employment Judge and has made a number of further comments.  There seems to be an issue as between the Employment Judge and the Appellant as to how the second day did proceed.  There seems to be an issue as between the Employment Judge and the Appellant as to whether there was any physical evidence that the Appellant was becoming anxious, nervous and manifesting signs of being under pressure.  He says that he was stuttering.  The Employment Judge and the lay member say that was not the case.

7.	The proposed Appellant says that he was stopped from making a number of points that he wished to make, and that some of them resulted in adverse findings that were influential in the conclusions reached by the Employment Tribunal.  The Employment Judge in his note indicates that the matters were dealt with in a conventional and straightforward way.  It seems to us, in particular given that there is apparently a document from the proposed Appellants that takes issue with some of what has been said in the note prepared by the Employment Judge, that we are in a difficult, if not unenviable, position.

8.	This is a preliminary hearing.  This first issue is one of real or apparent bias on the part of the Employment Tribunal in the management of the hearing and is to be determined by the well known test as to whether an objective observer might reasonably have the impression that the matter was not being fairly handled from the Claimant’s point of view.  It is not for us to decide that on a preliminary hearing.  It is simply our task to say whether it seems to us that it is a reasonably arguable matter.  Given that there is a conflict as between the proposed Appellant’s account and that of the Employment Judge, and, from what we have been told by Ms Hunt, that conflict is deepened if anything by the further comments that the Appellant has made, it seems to us that we are bound to say that the matter is reasonably arguable.  We do so not without hesitation because the account given by the Employment Judge, supported to some extent by the account given in the lay member’s email, seems to us a cogent and sensible account as to what might have occurred.  It is not however for us to resolve the matter.  For that reason alone, the matter will proceed.

9.	A second point was raised by Ms Hunt.  It is that the Employment Tribunal has repeatedly stated the issue should be looked at from the focal point of 22 August 2007 when the Claimant was dismissed.  This is clearly said in the last sentence of paragraph 50 of the judgment.  It is repeated in the first sentence of paragraph 54 and the last sentence of paragraph 54.  It is to be observed that the way in which the question is stated differs.  At one point the Tribunal seemed to think that the issue is whether the symptoms were likely to last for 12 months or more from 22 August 2007, and at another point whether it was likely that they would last at least 12 months from the date of the car accident.  We comment that the correct standpoint must plainly be the latter rather than the former.  That is not however the error that Ms Hunt submits the Tribunal have fallen into.  She points out that the disability discrimination claim is not confined to the detriment suffered by the dismissal on 22 August 2007, but takes issue with the way that the proposed Appellant was treated in the period before that by his employer.  Accordingly, Ms Hunt submits, it is an error by the Tribunal to have focused only on 22 August 2007.

10.	As a matter of logic, that is, of course, entirely correct but it ignores the factual matrix of the case.  As we have explained, the Employment Tribunal found that there had been no disability between the date of commencement of the employment on 23 October 2006 and the car accident on 12 December 2006.  Therefore, as to whether any subsequent disability was a long-term disability, the primary issue was whether at any point that the disability is alleged to have endured for 12 months or was likely to endure for 12 months in total looking at both the past and the future.  If the Employment Tribunal’s findings in relation to 22 August are correct, it seems to us that the Claimant cannot be in any better position factually at an earlier stage than he was on 22 August 2007.  If the impairment was not likely to last at least 12 months from the date of the car accident as at 22 August 2007, by simply chronological analysis it could not have been likely to last for more than 12 months at any earlier point.  Accordingly, that point is without merit and will not be allowed to proceed to the full hearing.

11.	We have found another aspect of this case somewhat troubling.  In order to explain that we need to go into the facts a little more.  The proposed Appellant had obtained a series of medical reports.  These were largely in a medico-legal context that arose from his personal injury claim stemming from the road traffic accident in December 2006.  They are listed at paragraph 16 of the Employment Tribunal’s judgment and reference is made to their contents between paragraphs 18 and 27 of the Employment Tribunal’s judgment.  Some of them were dated several months after the dismissal.  The Tribunal appears to have thought that they were therefore of no, or not much, evidential value save as to one aspect, which is dealt with in paragraph 32 of the Tribunal’s judgment.

12.	On 13 June the Claimant had a report from a consultant psychiatrist, Dr Moore.  In that report she had recounted the accident history in lurid terms.  At paragraph 32 of the Employment Tribunal’s judgment reference was made to that and the way that it contrasted in its account as to his abilities in the months immediately after the accident with the evidence that the Tribunal had from other sources as to his abilities in that period.  Otherwise, the Tribunal felt that the medical evidence after the date of dismissal was of limited value.  The Tribunal deals with this at paragraph 34 in the following terms:
“The recorded conclusions of some of his medical advisors during the course of 2008 ... The Tribunal has reminded itself that these were opinions given as to his position in 2008 not 2007.”

13.	It seems from paragraph 34 that the Tribunal felt the later evidence may not have been as relevant as the medical evidence before 22 August 2007.  The Tribunal concentrated, as it seems to us, to a significant extent on the report of Dr Balkwill, which was dated 28 February 2007.  This is referred to in paragraph 27 of the judgment.  Dr Balkwill had given a prognosis that the physical symptoms would improve and resolve fully between 9 and 12 months from the accident and that the psychological symptoms, given the fact that the potential Appellant appeared to Dr Balkwill to be well motivated, would resolve between 6 to 9 months from the time of the accident.  The Employment Tribunal in the last sentence of paragraph 50 and the last sentence of paragraph 54, having extensively analysed the factual matrix in relation to on-going symptoms or manifestations thereof, used the formulation “even if found to be substantial”.  The Tribunal goes on to say at paragraph 55 that it accepted the employer’s evidence that he had no obvious difficulties day-to-day at work.  The Tribunal continues as follows:
“This is not to find that the Claimant had no difficulties.  There is no doubt that he suffered continuing pain and discomfort and had the added burden of flashbacks of the accident.  He attended on his GP on a number of occasions and was referred to physiotherapy from 16 March to 31 July 2007, and for counselling from 3 July 2007 onwards.  The physiotherapy is recorded as vastly improving his movement patterns and enabling him to increase the distance he could walk but at a slow speed.”

14.	Paragraph 56 continues as follows:
“The question for the Employment Tribunal was whether these matters had a substantial effect on his day-to-day activities during this period of time.  The evidence before the Employment Tribunal from the Claimant was unsatisfactory for reasons already explained above.  Such evidence as he did give related substantially to his difficulties at work and was contradicted by Mr Cowie’s observations and dealings with him at that time.”

15.	The Tribunal goes on then in paragraph 57 to say:
“The Employment Tribunal therefore find that the evidence before it does not support an impairment as to the Claimant’s continence, dexterity, eyesight, speech or hearing, as at 22 August 2007.  There is evidence of some difficulty as to walking, the unnerving and debilitating flashbacks of the accident, general fatigue and tiredness.”

16.	This is all brought together at paragraph 58 in the following way:
“However, even if the Employment Tribunal could conclude that these amounted to a disability under the Act, it has concluded that as at 22 August, taking into account what was known at that time and what the available medical evidence obtained during the relevant period indicates, (which to some extent is confirmed by later medical reports), such medical conditions and difficulties as the Claimant had to deal with were unlikely to last for 12 months or longer.  That is it was more probable than not that the Claimant was substantially, if not fully, recovered from his injuries and their affects in that period.  His future deterioration has been marked and substantial but that would not have been considered likely then.”

17.	What we find troubling about the above analysis is first of all that the Tribunal only deals with the question as to whether the impairment was substantial by implication.  We have referred to the qualifications in the last sentence of paragraph 54.  There is however no express finding that the potential Appellant’s impairment was not substantial.  Moreover, it seems to us that any earlier or later medical report was but a component of what had to be taken into account as at 22 August 2007.  Nor do we see how the later medical reports bore on the question as to what the prognosis was at that date.  The Tribunal say at paragraph 58 that the disability would not have lasted for more 12 months in total but we have some difficulty in understanding the reasoning that leads to that conclusion.

Conclusion
18.	Accordingly, if the proposed Appellant is minded to amend the Notice of Appeal and raise the issues as to whether there was a proper finding that the disabilities were substantial, or whether the Tribunal correctly directed themselves as to the factors that they should take in to account on 22 August 2007, we will give permission for such amendments and that is a matter that can also be canvassed at the full hearing.