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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Jobling v Corporate Medical Management Ltd [2002] EWCA Civ 627 (24 April 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/627.html Cite as: [2002] EWCA Civ 627

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge A Wilkie QC)

		Royal Courts of Justice Strand London WC2A 2LL Wednesday, 24th April 2002

Wednesday, 24th April 2002.

1. LORD JUSTICE PILL: This is an application for permission to appeal against a decision of the Employment Appeal Tribunal, His Honour Judge Wilkie QC presiding, sent to the parties on 30th January 2002. The Tribunal dismissed an appeal from a majority decision of an Employment Tribunal sitting at Liverpool on 6th April 2001. The Employment Tribunal had heard a preliminary issue in relation to an application by the claimant under the Disability Discrimination Act 1995 ("the 1995 Act"). The majority held that the applicant, Mrs J M Jobling, was not a disabled person and her claims of unlawful discrimination were dismissed.
2. The proposed respondents, Corporate Medical Management Ltd, are the former employers of the applicant. Mrs Jobling began working for them in September 1993 and was absent from work due to illness, the Tribunal found, between October 1998 and February 1999. It was common ground that at least for a part of the period of that absence the applicant was suffering from clinically recognised depression. The applicant gave evidence to the Tribunal, as did her husband, and a former colleague. The Tribunal heard medical evidence from Dr Amin and Mr Beckett on the applicant's behalf, and from Dr Monteiro and Dr Orten on behalf of the proposed respondents.
3. The issue was whether Mrs Jobling was a disabled person within the meaning of the 1995 Act. Section 1(1) of the Act provides:

"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".

4. In Schedule 1 paragraph 1(1), it is provided that:

"`Mental impairment' includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness."

5. Paragraph 6(1) of the Schedule provides:

"An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect."

6. The applicant's case before the Tribunal was that she had suffered from reactive depression from November 1998 and that the second part of the definition in Schedule 1 was met in that it had a substantial and long-term adverse effect on her mental ability to carry out normal day-to-day activities. It was submitted that the resulting effects of the reactive depression continued throughout 1999 and beyond. It was further submitted that if the depressive illness had been resolved in the course of 1999, there had been a relapse towards the end of 1999 which brought her within the provisions of the Act.
7. The point was taken as a preliminary point, and Mr Bowers QC on behalf of the applicant points out what he submits is a curiosity in the approach of the majority of the Tribunal in that it considered the effect of the alleged condition before considering whether any such condition existed. As to the effect of the condition, they found that on that ground the claim failed because the claimant had not established an inability carry out normal day-to-day activities. The Employment Appeal Tribunal took a different view on that aspect of the case. They also made comments about the undesirability in many situations of taking points such as the present one as preliminary points.
8. It is not necessary to determine on this application whether the procedure followed was the most appropriate in the circumstances. The application does not depend on that. Nor, in my judgment, can its success or failure depend on the order in which the majority of the Employment Tribunal approached the question. I would expect it to be the ordinary course to consider first whether there was an impairment within the meaning of section 1, and then to consider the effect of that impairment. It may be that would have been a better way to approach the matter in this case, though I can see that there could be a case in which a consideration of the effects might produce so clear a result that it became unnecessary to consider what may be complex medical evidence and that the course adopted might be an appropriate one.
9. Mr Bowers QC points out that the majority have not used the word "impairment" in their reasoning. He submits that the minority approach, which is set out at paragraphs 19 and following of the extended reasons, was the appropriate approach and included a finding that there was a physical impairment within the meaning of section 1.
10. It appears to me that the case was throughout argued on the basis that there was a mental impairment within the meaning of section 1. That appears in IT1; it appears in the summary of the claimant's case to which I have referred and there is no suggestion in the judgment of the Employment Appeal Tribunal that the present point was taken.
11. A serious problem facing the applicant, in my judgment, is that there are findings of fact by the majority which it is extremely difficult to disturb. The Employment Tribunal, and in this case the majority, is of course the fact-finding tribunal, and an appeal exists only on a point of law.
12. The Employment Appeal Tribunal took this view of the question of impairment:

"17. On this issue, it seems to us that the majority were perfectly entitled, on the evidence that they had before them, to come to the view that they did and, accordingly, the appeal against this part of the Decision, which is effectively a perversity appeal, is one which must fail."

13. I will not spell out the full reasoning of the Employment Tribunal, because it is unnecessary to do so. They stated:

"15.The view of the majority was that the continuance of the medication was not an indication of an ongoing depressive illness. Venlafaxine revitalizes the chemical depletion within the brain that results in the depression and after sufficient treatment can be discontinued. It is not a maintenance drug and is not addictive. Dr Monteiro said that he would have expected her to be weaned off after a maximum of 9 months. If her doctor chose to continue with the drug it would probably be for psychological reasons - almost the placebo effect. Mrs Jobling chose herself to reduce the dose with no ill effects and increase them when she had a stressful experience in December 1999.

16.Mrs Jobling had other influences in her life, such as IVF treatment and family upsets which could have contributed to some of the mood changes described by Mr Jobling."

14. (That, I add, is a comment that the majority were entitled to make as an indication that the problems faced by the applicant were not necessarily the result of an impairment as defined in the Act.)
15. Having considered that there was no relapse or recurrence at the end of 1999, the majority stated that, in short, their view was that:

"the inability to undertake normal day to day activities had not been demonstrated but in so far as it existed, that inability was not (after February 1999) the consequence of a `clinically well recognised illness'".

16. Upon those findings the statutory criteria of establishing a mental impairment were clearly not met.
17. This is a renewed application, and Mummery LJ, considering it on paper, stated (and I respectfully agree) that it was a finding of fact which could not be challenged. The case, however, is put on a different basis before this court by way of an application. It is submitted that application is not based on any lack of rationality in the conclusion of the majority. It is based on their failure to consider that this was a physical impairment and, as such, came within the statutory definition.
18. In paragraph 22, the minority member stated this:

"Until that date, it seemed to the minority member that whilst she [the applicant] might not be demonstrating all the manifestations of depressive illness, the reason was that she was taking the drugs. The impairment (in the sense of the inability of her body to produce those drugs properly itself) and therefore the disability continued until such time as the `threshold' level had been met. Dr Monteiro on behalf of the Company conceded that it was reasonable to believe that throughout 1999 the relevant chemical balance had not been achieved."

19. Thus, it is submitted, there was a physical condition in the brain. That condition, upon the approach to Dr Monteiro's evidence which the minority member took, was still present throughout 1999. While there were no symptoms of mental illness on the majority's findings, there remained a physical impairment for such a period as would bring the claimant within the Act.
20. Reliance is particularly placed on the words in parenthesis:

"The impairment (in the sense of the inability of her body to produce those drugs properly itself)..."

21. I have expressed the view that this case was and always has been argued on the basis of a mental impairment. This court does not have before it the medical reports. We are told that they are voluminous and that an application would be made to place them before the court at a full hearing, if permission were granted.
22. In my judgment it is not arguable that this court would reverse the decision of the Employment Tribunal, upheld, as it has been, by the Employment Appeal Tribunal. I find the reasoning in paragraph 15 entirely acceptable. There are findings of fact based on reasoning which, in my judgment, plainly establishes that the claimant did not come within the definition, and there is no error of law or absence of evidence to justify the findings in the conclusion which the majority reached.
23. As to paragraph 22, I read the minority member as considering a mental impairment; and it would be surprising if he or she did otherwise, having regard to the way in which the case had been presented, not having expressly made the point which it is now sought to be made on behalf of the applicant.
24. I follow the point made about the words in parenthesis, but the paragraph begins with a reference to a depressive illness, and it appears to me that what the minority member went on to do was to consider whether this was a paragraph 6 of the Schedule case in which it could be said that by reason of that paragraph the definition was met. However, even if I am wrong about that and the minority member did have in mind a physical impairment, that does not, in my judgment, create an arguable case that the reasoning of the majority can be challenged. Dr Monteiro is recorded as saying - and it is not suggested that this was evidence which could or should be ignored - that he would have expected the claimant to be weaned off Venlafaxine "after a maximum of 9 months". Upon that approach, even if one takes a physical disability, the physical impairment was not present for the necessary 12 month period. The opinion of Dr Monteiro, accepted by the majority, was that the impairment had ceased to exist within a maximum of 9 months.
25. An interesting point has been raised in that there may be a case where this court has to consider how far one can trace a present inability to perform every day events back to a physical cause. It might arise, for example, in the case of a congenital defect where, upon one possible approach, any person with such a defect, even if entirely controlled by drugs or in some other way, was within the definition. However, in my judgment this is not a case in which the matter can be explored or which, if it were to be explored, it is arguable that the applicant would succeed.
26. I have indicated that the case has always been argued upon the basis of a mental impairment. Moreover, the Employment Tribunal are the fact-finding body. They have considered the medical evidence. They have sufficiently reasoned it in paragraph 15 and other paragraphs, and have done so in a way which, in my judgment, makes it unarguable that the applicant comes within the statutory definition. I am not able to attach to the opinion of the minority member, as now relied on and developed by Mr Bowers, a case which could arguably result in the decision of the Employment Tribunal being reversed.
27. For those reasons, I would refuse this application.
28. LORD JUSTICE CHADWICK: I agree that the application should be refused. The Employment Tribunal were plainly entitled to reach the conclusion on the evidence before them that the applicant was not suffering from a mental illness after the middle of 1999. It must follow that she did not have a mental impairment after that date: see paragraph 1(1) in Schedule 1 to the Disability Discrimination Act 1995.
29. The applicant seeks to meet that difficulty by contending that she continued throughout 1999 to have a physical impairment which, in reliance on an observation of the minority member recorded in paragraph 22 of the Tribunal's decision, she identifies as an inability of the body to produce certain chemical substances for itself. But it seems an inescapable conclusion that the only effect of that inability, if established, was that it led to some dysfunction of the mind.
30. I recognise that there may well be cases where a dysfunction of the mind may have a physical cause; and that, in such cases, it may be possible to say that the person whose mind is dysfunctional has a physical rather than, or as well as, a mental impairment. But a finding that a disfunction of mind has a physical cause, so as to bring that cause within the concept of physical rather than mental impairment for the purposes of the 1995 Act, would, as it seems to me, need to be based on cogent evidence from experts who had addressed that question specifically.
31. There is nothing to suggest that there was evidence of that nature in this case. In particular, I am not persuaded that the observations in paragraph 22 of the Tribunal's decision are founded on specific evidence of that nature. The case was run on the basis of mental impairment; and so it would be surprising if the question to which I have referred was addressed in the expert evidence in a way that would be necessary to enable the Tribunal to consider it properly. Without such evidence before the Tribunal they cannot be said to have erred in law; and there is no real prospect of success on an appeal.
Order: Application refused.