Appeal No. UKEAT/0383/12/DM

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 8 February 2013

Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
(SITTING ALONE)

MRS T TURNER	APPELLANT

SOUTH CENTRAL AMBULANCE SERVICE NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR JAMES PRETSELL
(of Counsel)
Instructed by:
Henmans LLP
5000 Oxford Business Park South
Oxford
OX4 2BH
	
For the Respondent	MS SALLY COWEN
(of Counsel)
Instructed by:
DAC Beachcroft LLP
Portwall Place
Portwall Lane
Portwall
Bristol
BS99 7UD

SUMMARY
DISABILITY DISCRIMINATION

A Claimant suffered from PTSD, diagnosed in 2004.  She had suffered episodes of stress thereafter, causing symptoms, which she attributed to her PTSD.  Psychiatric evidence differed as to whether these were recurrent episodes of PTSD or separate short‑lived events of stress‑related symptoms.  The Employment Judge held it was the latter.  However, though rejecting an underlying condition throughout the Claimant’s employment he indicated that she might have had sufficient symptoms for part of her time in employment to qualify as a disability, and on one reading of his Reasons rejected the conclusion that she did only because he adopted the wrong standard of proof.  Held that in context he had not erred in that way, and had actually concluded that there was sufficient evidence for him properly to conclude that the Claimant had been disabled for part of the time, and indeed when she had been so.

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
Introduction
1.	An Employment Judge at Reading concluded that the Claimant was not disabled.  The issue on this appeal is whether that decision can stand.  

2.	The context is this.  The Claimant was employed from 10 March 2008, she said, until she resigned on 18 February 2011.  She claimed to be disabled because she claimed to suffer throughout that period from the symptoms of post‑traumatic stress disorder (PTSD).  The PTSD had originated in a car accident in 1998, in which, the Claimant asserted, she had broken her neck.  Highly unusually, and beyond the general experience of the consultant psychiatrists who were called to give evidence, the PTSD did not manifest itself immediately; it did so in 2004.  Thereafter the Claimant said that she suffered from the adverse effects of a number of stressful circumstances.  She attributed those effects to what she said was the underlying PTSD.  Events of which she complained during her period of employment with the Respondent ambulance service caused some of these symptoms, which she attributed to the underlying condition.  It follows that if they were to be attributed to an underlying condition, then there had been episodes of a recurrence of that condition, and it might properly be said that the condition was likely to recur and would have been seen by any reasonable observer and employer as likely to do so.

3.	There was, however, another way of viewing what had happened.  That was that the stresses from which the Claimant suffered from time to time caused her symptoms from time to time but each occasion was no more than would be caused to any ordinary person suffering from some of the adverse effects from time to time of particular pressures in their life.  They would be individual episodes not linked to each other by any underlying condition, each of which would be relatively short‑lived and none of which would justify being described as a disability within the meaning of the Equality Act 2010, which, it was accepted, applied to the case.

4.	The Claimant supported her belief by calling before the Tribunal Judge Dr Burke, a consultant psychiatrist.  He thought that the various occasions on which the Claimant had had florid symptoms were all aspects of the underlying condition.  He gave evidence essentially to that effect.  An equally respectable professional view was put forward on behalf of the Respondent by a Dr Isaacs, another consultant psychiatrist.  He took the view that the episodes were caused by individual stressors, that there was no evidence of any underlying condition, they were not linked, and it would follow that legally the Claimant could not be regarded as disabled.

The Judgment
5.	In that context the Judge was considering, essentially, a case in which the Claimant was saying that throughout the period of her employment she had suffered from an underlying condition always liable to break out again and it had done so.  He considered the conflict between the two psychiatrists and in his conclusions was satisfied that the Claimant had been diagnosed with PTSD in 2004, but he found, and he was entitled to do so on the evidence, that that condition did not last for as long as 12 months; see paragraph 50.  At paragraph 51 he said this:

“[…] I am not satisfied that the condition as described in 2004 has subsequently recurred after 2004.  I am satisfied that there was no evidence of a continuing impairment.”

6.	That is a finding of fact that excludes any period of time during which the Claimant was employed by the Respondent as having been a period of time during which she suffered from PTSD or any recrudescence of it.  At paragraph 56 he underlined that conclusion by noting that he had preferred the analysis provided by Dr Isaacs.  He was entitled to draw that conclusion, and he gave reasons for it at paragraph 57 by reference to whether there had been any evidence of PTSD symptoms during that period.  He noted there had been episodes of stress at work, but he did not regard those as any evidence of the underlying condition that had been alleged.

7.	Then he said this, in three paragraphs that have proved controversial:

“58. In considering the question whether or not the Claimant was a disabled person from 2008 until the termination of her employment, I have come to the conclusion that the Claimant was not a disabled person throughout this period.
59. I have asked myself whether I am able to identify a period of time at which the Claimant is clearly a disabled person and if so on what basis.  I am however unable to answer that question with certainty although judging from the evidence which the Claimant has given, the general descriptions that she gives of her symptoms and also a consideration of the doctor’s notes it would appear to me that towards the end of the period of the Claimant’s employment from about 2009 onwards that the Claimant may have become a disabled person.  Before that tiem [sic] I am not satisfied that the Claimant has described a condition which is an impairment that has s [sic] substantial and long‑term adverse effect on her ability to carry out normal day to day activities.
60. On balance, then, I do not feel able to conclude that the Claimant was a disabled person at the relevant time.  The evidence in this case has been directed to showing that the Claimant was a disabled person throughout the whole period, it has not.”

8.	The central paragraph of those three, paragraph 59, does reflect what happened at the hearing.  At some time around about 3 o’clock in the afternoon the Judge rose to consider the evidence he had heard.  He indicated that he might be able to give judgment that afternoon.  An hour and a quarter or so later, at 4.25pm, he returned into court.  He wished to clarify whether he was being asked whether the Claimant was disabled between 2008 and 2010 or whether at any point between 2008 to 2010 she became disabled.  The Claimant, represented then, as now, by Mr Pretsell of counsel, responded that her case was that she had disability throughout.  He responded:

“If disabled through employment – will say no.  If disabled some point through employment – will need to keep thinking.  Not going to give an answer today.  Got my indication.  Will come back to it later in week.  Reserve decision.  If asking through whole period of time – then no.  If part of that time – then don’t know.”   

9.	In saying that, the Judge had plainly indicated that if the question he had to determine was whether throughout the three years from 2008 to 2010 the Claimant was disabled, he had a firm answer in mind; that was no.  What prevented him giving the decision at the time was that he apprehended that he needed to consider whether there might nonetheless be some point at which she became disabled.  It would follow inevitably, in my view, that what he had in mind was not a recurrence of an underlying condition.  If it had been, he would have found that she was disabled throughout, but he rejected that case for reasons that were subsequently to appear in his Judgment.  What he must have been considering was whether there was a sufficient description of the symptoms for an episode of such symptoms standing on its own or linked with other such episodes to amount to a disability even if it was not itself a recurrence of the PTSD.  That that was what was almost certainly in his mind is demonstrated by what he went on to say in paragraphs 54 and 55 of his Judgment.  In those he said that if the Claimant was describing an ongoing condition of PTSD, it was a long‑term condition and must be substantial; in other words, he would have been bound to find that throughout the period 2008‑2010 she was disabled.  At paragraph 55 he added this:

“However if she is not describing an ongoing condition of PTSD but episodes of stress it would be necessary to consider whether in relation to each particular episode the Claimant is describing something which is substantial and long‑term so as to comply with the definition contained in Section 6 of the Equality Act, either as one ongoing condition or a recurring condition, whatever label is attached to it.”

10.	It was therefore that aspect that he had indicated at the conclusion of the hearing that he did not then know the answer to and needed time to think about.  Seen in that light, paragraph 59 begins to take on a particular meaning in context, to which I shall return when I have outlined the submissions made to me.

Submissions
11.	For the Claimant, Mr Pretsell raises three points in his skeleton argument summarising the grounds of appeal: first, that the Judge misapplied the law by restricting his approach to the question of whether the Claimant suffered from a disability to a consideration of whether she suffered from a disability throughout the whole period of her employment, and he thereby failed properly to consider whether there was a recurrence of her condition; secondly, that he erred in law by applying an incorrect test as to the burden of proof when considering whether she was disabled; and thirdly, that he failed to consider whether she was disabled at the time of the relevant discriminatory acts.  The first and third plainly go together.

12.	It is clear from what I have already said that the Judge formed a view that he was entitled to reach, and clearly expressed, that the Claimant was not suffering from episodes during her employment that could be linked to one underlying condition of PTSD as she had claimed.  The second ground, however, has this to be said for it.  It focuses upon the words “clearly” and “with certainty” that appear in paragraph 59.  Those words are words that may suggest that the Judge had in mind not a test on the balance of probabilities but a test, applying the criminal standard of being satisfied so as to be sure or beyond any reasonable doubt.  That is compounded by the last sentence of paragraph 59, which indicated that the evidence had not satisfied the Judge that she was suffering from a disability at that time.  That of course leaves open whether he was so satisfied that she had described a condition that was a disability after that time.  The use of the words “may have become a disabled person” indicated a possibility.  If the Judge had been applying the wrong standard to the evidence that suggested to him that the Claimant might have been suffering from a disability at a period of time in which she was in employment, from about 2009 onwards, his conclusion would not have been reached on a sustainable basis and he would have taken the wrong approach.

13.	At one point in his submissions Mr Pretsell felt inclined to agree with a comment from the Bench that the burden of proof question was really the central question.  If, suppose, the Judge had, instead of using the words “clearly a disabled person” and “unable to answer that question with certainty”, said “is on balance a disabled person” or “unable to answer that question with the certainty required by the civil standard”, the finding that the Judge came to would be one of fact and would be unimpeachable.  That is not, however, what he said.

14.	Ms Cowen, who appears for the Respondent, as she did below, began her submissions by inviting me to isolate paragraph 59 as not forming any part of the Judgment upon which I could rely.  Later in her submissions, however, she argued that paragraph 59 was to be seen in context, and she noted that two matters were central to the decision that the Judge had to make.  One was the question of whether the definition of disability was satisfied at all, at any time, but the second question was precisely when.  The Claimant here had set out a number of particular acts that she said constituted discrimination against her on the grounds of disability.  It needed to be known whether at the time of those acts the Claimant was disabled.  Thus she invited me to read paragraphs 58, 59 and 60 together and to focus in particular upon the words “able to identify a period of time at which the Claimant is clearly a disabled person” as relating not just to disability but as to the second question: when?  That question he plainly could not answer with any sufficient certainty.  “Look,” she argued, “at the words ‘from about 2009 onwards’.”  Those words are vague.  They do not admit to the precision that would be necessary in order to resolve the Claimant’s complaints that she had been discriminated against on the grounds of a disability.

Discussion
15.	A Tribunal Judgment must not be viewed as if it were the finest piece of legal draughtsmanship.  It may, and often does, contain infelicities.  The words used may not convey precisely what the Tribunal intends to convey.  For that reason in particular, a Judgment must be read in context.  That context is not only the context internal to the Judgment; it is also the context of the case in general at the conclusion of which it comes.  In my view, two aspects of that context are of particular relevance here.  First, the Judge had indicated when he returned into the Tribunal that he had reached a clear view as to the underlying condition; there was not one.  He indicated that what he wished to consider was whether nonetheless what had been described to him in evidence satisfied him that there was another disability.  He was uncertain about that; that is plain.  What he thus had to consider, and what, in my view, he was expressing between paragraphs 58 and 60, was why he was uncertain and that he remained uncertain at the end of the evidence.  

16.	Secondly, the context was one in which he had preferred, and clearly preferred, the case made by the Respondent as to the absence of any ongoing PTSD.  

17.	Next, I take into account that this is in general a careful and thoughtful Judgment; if anything, the complaint might be made that it is perhaps almost too internally reflective.  To suppose that an Employment Judge in using the words “clearly” and “with certainty” was indicating that he was actually applying a standard of proof greater than that necessary would be to hold that he was committing one of the most basic errors, which is not a probable one.  That said, a court on appeal has only the words used to understand the reason.  But those words have to be seen in context.

18.	Focussing more narrowly on the context internal to the Judgment, paragraph 58 expresses a clear conclusion as to the whole of the period.  That, as I have noted, excluded the underlying PTSD.  Paragraph 60 begins with the words “on balance”.  It is not altogether easy from the words used to see what is being balanced here, because there is nothing obviously in paragraph 59 that requires to be held in balance, one fact against another, unless it is whether the description of symptoms given by the Claimant from about 2009 onwards was sufficient to show a disability.  But it does indicate to me that the Judge had here the test of balance of probabilities in mind.

19.	Turning more centrally still to paragraph 59 itself, there were, I accept from Ms Cowen’s submissions, two matters that the Judge would need to establish if he were to hold the Claimant disabled for the purposes of this claim.  The first was her condition and the length of time for which it would last or recur; the second was the time at which she suffered it.  He could not be clear about when; that is plain from the use of the words “about 2009 onwards”, and his initial question was seeking to identify a period of time.  The recognition that the Judge gave to the possibility that the Claimant may have become a disabled person is in that light entirely appropriate, but it is described as a possibility only.  Possibility would not be sufficient to satisfy the appropriate standard of proof.

20.	In paragraph 60, the Judge was expressing his conclusion.  It is said by Mr Pretsell that the second sentence in that paragraph did not fit with what went before and indicated, he submits, that the Judge was focussing upon the question of whether throughout the whole of the period the Claimant was a disabled person.  I do not accept that submission.  The reason it cannot be right is that the Judge had clearly answered the question about the whole of the period; he did so in paragraph 58, and he had done so at the conclusion of the hearing at 4.25pm.  This sentence therefore has some other function.  I see it as explaining why in his view there had been evidential insufficiency.  The case that had been made before him upon which the parties had focussed was that of the underlying PTSD, something that would have applied throughout the whole of the period.  He therefore did not have the material from which he could safely conclude to the requisite standard that for some other reason the Claimant had suffered for long enough or from episodes of stress that might be recurring, as he put it in paragraph 55, from some time in 2009 onwards.  He recognised the possibility, but he was saying that on balance he could not be satisfied that it had been shown to him, and the burden of proof lay upon the Claimant.

21.	I reject the submission made by Ms Cowen that paragraph 59 should be isolated.  It is not an appropriate approach to take to any Judgment to isolate one paragraph as though it should simply be ignored when considering what the Judgment stands for.  I do not see that her reference to Jones v Mid Glamorgan County Council [1997] IRLR 685, paragraph 30, in any way justifies ignoring what is said in a paragraph.  However, I am persuaded by her later submission that the paragraph can be and should be read in context; that the word “clearly” was dealing with the joint questions of time and disability, and the words “with certainty”, though not felicitous, do not persuade me that the Judge here was adopting the wrong standard of proof.

Conclusion
22.	If I am satisfied that the Judge in paragraphs 58 to 60 was applying the correct standard of proof and on such an application found that there was insufficient, on balance, to persuade him that the Claimant was disabled at the relevant time, then this Judgment is unassailable, and the appeal must fail.  Since that is the conclusion to which I have come as to the proper way in which to read this Judgment, it fails.