Appeal No.	 EAT/306/99 EAT/938/99
EAT/939/99
EAT/940/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 & 15 June 2000
Judgment delivered on 9 October 2000

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR P A L PARKER CBE
MS B SWITZER

EAT/306/99 & EAT/939/99
COUTTS & CO	APPELLANTS
MRS S DAVIS

______________________________________________________________________________
EAT/938/99 & EAT/940/99
MRS S DAVIS
COUTTS & CO	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant/Respondent
COUTTS & CO	MR ANDREW SHORT
(of Counsel)
Instructed By:
Messrs Beachcroft Stanleys
Solicitors
20 Furnival Street
London EC4A 1BN	
For the Appellant/Respondent
MRS S DAVIS	MR JONATHAN CLAY
(of Counsel)
Instructed By:
Messrs Ouvry Goodman & Co
Solicitors
12 High Street
Sutton
Surrey SM1 1HP	

	MR JUSTICE LINDSAY (PRESIDENT):	
1.	Susan Davis began working for Coutts & Co (“the Bank”) in August 1968.   By 1991 she had become head of the Trustee Stock & Share Section.   She was in that position when, on 22nd March 1995, she was told by the head of the Bank’s Trustee Department that her position had been deleted.   She left the office in disgust;  she had had no forewarning.   She protested but returned to work until 30th May 1995.   She has not worked for the Bank since, relying on medical certificates that at first referred to stress.   She remained on full pay until January 1996 and was then on half-pay until August 1996.   Thereafter she was not paid by the Bank.   On 29th January 1997 she was certified unfit to work for a further 6 months.   On 14th February 1997 the Bank gave her notice of dismissal to take effect on 10th May 1997.   Her appeal to the Bank failed.   On 26th June 1997 she presented her IT1 claiming Unfair Dismissal and Disability Discrimination.   The Bank claimed she had been dismissed for “Capability”.   There was a hearing spread over 5 days in October and November 1998 before the Employment Tribunal at London (North) under the Chairmanship of Mr J.A. Caborn.   The Extended Reasons, some 26 pages of close-typing, were sent to the parties on 12th January 1999.   The Tribunal unanimously held that she had been unfairly dismissed but had not been discriminated against by reason of disability.   After a further day’s hearing on “Remedies” on the 11th May 1999, the same Tribunal gave its Extended Reasons on remedies, including quantification of compensation, to the parties on 23rd June 1999.   The Bank was required to pay Mrs Davis £15,920.   We now have before us 4 appeals:  the Bank appeals against the decision that Mrs Davis had been unfairly dismissed;  Mrs Davis appeals against the decision that she had not been discriminated against by reason of disability.   As to remedies, Mrs Davis appeals against the Tribunal’s declining of her request for an order for re-engagement and the Bank appeals against the quantification of compensation for Unfair Dismissal being as high as £15,920.   We heard complete arguments from both sides - Mr Short for the Bank and Mr Clay for Mr Davis - on each of the 4 appeals before moving on to the next and we shall deal with the appeals in the order in which we heard them.
UNFAIR DISMISSAL
2.	The Pension Arrangements made by the Bank for its employees included the following, under the heading of “Pension before Normal Pension Age”:-
“9. (A)   A member who having completed two years’ Qualifying Service retires from service before Normal Pension Age because in the opinion of the Company he is unable by reason of physical or mental incapacity or infirmity to perform any form of remunerated employment and is likely to remain so unable shall thereupon be paid a pension for life ......”.
Throughout 1995, after Mrs Davis had left work on sickness grounds on 31st May, the Bank made numerous efforts to find employment for Mrs Davis but her sickness continued and by 30th June 1996 her own GP was suggesting that Mrs Davis should consider retirement on medical grounds, a suggestion she, the GP, would wholly support.   It is not clear that the GP was aware that under the Bank’s scheme an inability to perform any form of remunerated employment and the likelihood of that remaining so were prerequisites of a pension for life.   On 26th April 1996 the Bank asked Mrs Davis’s GP for an update on her condition.   On 15th July 1996 the GP answered that Mrs Davis was still suffering from severe stress and anxiety symptoms.   Mrs Davis, continued the GP, had recently attended a DHSS Medical Assessment and had been advised that she was unfit for all work.   On 16th August 1996 Mrs Davis’s husband, to whom she had delegated some dealings on her behalf with the Bank as she found direct contact too stressful, wrote to the Bank asking that it should consider her for early retirement on health grounds.   In the meantime Dr Murray Bruce, the NatWest Group’s Chief Medical Adviser, had been seeking to make arrangements in conjunction with Mrs Davis’s GP for her to receive counselling.   On 21st November 1996 Mr Robin Haggett, Assistant General Secretary of the NatWest Staff Association, who, with Mr Davis, had been acting on her behalf with the Bank, advised the Bank that her condition was deteriorating and:-
“.... I should be grateful if the Bank would await the additional medical report from the Counsellor in order to further consider her request for ill-health early retirement”.
The Bank agreed that course but unfortunately (and this is no criticism of the Counsellor) when his report came on 20th December 1996 it was inconclusive as to medical retirement.   Indeed, there may have been some misunderstanding here as the Bank had thought the report awaited would be from a Consultant (who could perhaps be expected to report on retirement on medical grounds) whereas Mr Haggett spoke of a report from only the Counsellor.   However these dealings in November 1996 could very well have created the impression on the Davis’ side that the Bank was willing to await a definitive report from a medical man as to Mrs Davis’s eligibility or otherwise for early retirement on medical grounds, a report quite other than the Counsellor’s report of 20th December 1996.
3.	On 22nd January 1997 the Bank by its Mrs Noakes wrote to Mrs Davis (with a copy to Mr Haggett) lamenting that months had passed “.. and we do not appear to be very much further forward” on the medical side and saying:-
“We now need to examine carefully the available options remaining for the Bank so we can be in a position to reach a decision on how to progress matters ....”.
A meeting was to be arranged.   The “options remaining” were not spelled out.
4.	On 27th January 1997 Mrs Davis’s GP (who, as we have mentioned, had as early as 26th April 1996 been asked for an update in relation to the GP’s support for ill-health retirement) wrote to the Group’s Chief Medical Adviser, saying only that Mrs Davis had finished her counselling sessions.   That Chief Medical Adviser, Dr Murray Bruce, despite the Bank by then having received a sick note as to Mrs Davis’s unfitness for work for a further 6 months from 29th January 1997, advised the Personnel Department of the Bank that “reading between the lines” of the GP’s letter of 27th January, it could be assumed that Mrs Davis was now better.   Dr Murray Bruce’s roughly contemporary note continued:-
“The prospect is for a meeting next week with her and her representative, who may well be her husband, when the two options of ill-health retirement or termination of service will be considered.   She has now been off for 90 weeks”.
Dr Murray Bruce had had the advantage of having been visited by Mrs Davis.   
5.	The meeting took place on 5th February 1997.   Mr Davis and Mr Haggett represented Mrs Davis.   The Bank’s internal note of the meeting, cited more fully by the Tribunal, included the following:-
“At the meeting on 5th February Robin Haggett maintained that this was the first occasion the Bank had informed either Sue or her husband that the request for ill-health retirement was no longer an option.   He asked for an additional period to be allowed and for the Bank to seek further medical evidence from Dr Bowen” [Mrs Davis’s GP] “or a specialist”.
Then, after some further remarks which paint an unfair picture of Mrs Davis (it is hardly fair to criticise a patient suffering from severe stress and anxiety for failing adequately to press her GP for speedier responses on the very subjects causing the stress) and after wrongly suggesting that Mrs Davis had declined to fall in with Dr Murray Bruce’s suggestion as to counselling (he had suggested “specialist counselling”, which she had had, albeit not from a specialist on the NatWest’s network) the Bank’s internal note continues:-
“In all the circumstances I believe there is no valid reason for us to allow a further period nor do we have any obligation to seek more medical evidence .... we must rely on the medical expertise of Dr Murray Bruce and he has not been given any prognosis that would lead him to recommend early retirement on ill-health grounds”.
6.	On 14th February 1997 the Bank wrote to Mrs Davis.   The letter mentioned Mr Haggett’s requests for a further waiting period and for the Bank to seek any medical evidence that might be available to support Mrs Davis’s request for ill-health retirement but declined both on the ground that sufficient efforts had already been made.   The letter said that, the Head of the Bank’s Human Resources having received “the advice of our medical adviser, there were no grounds for” [him] “to recommend to our Pension Fund Trustees that you should be permitted to take early retirement due to ill-health”.
7.	Although it would be consistent with Dr Murray Bruce’s view (namely that “reading between the lines” of Mrs Davis’s GP’s letter, “it could be assumed that she is now better”) that he was of the view that the conditions  for ill-health early retirement were not met, if he had advised the Bank’s Head of Human Resources that there were no grounds upon which that could be recommended, the Tribunal do not cite such advice.   The Bank’s invitation to Mrs Davis to visit Dr Murray Bruce had only been described in the Bank’s letter of 30th July 1996 as being with a view to his deciding what type of counselling would be most likely to help her rather than for a full examination.   The letter of 14th February continued:-
“After weighing up all the facts of your case I consider I have no option but to terminate your employment contract on grounds of capability”.
Thus notice was given to Mrs Davis, to expire on 10th May 1997.
8.	The Tribunal’s conclusion that the dismissal was unfair seems to us to have embraced the following factors:-
(i)	The Bank’s letter of 22nd January 1997 speaking of “available options” had 	not mentioned that dismissal was one of them;
(ii)	There was no suggestion that dismissal was a real possibility;
(iii)	“Analysing the evidence” said the Tribunal (and it alone is able to do that, we 	do not even have Chairman’s notes) “the Tribunal is without doubt that the 	reality of the situation was that when Mrs Noakes wrote to” [Mrs Davis] “on 	22nd January 1997 the inevitable outcome of the proposed meeting was that” 	[Mrs Davis’s] “employment would be terminated”;
(iv)	Without medical evidence to support ill-health retirement (and in context that 	could only mean without fresh medical evidence) the only option the Bank was 	truly going to consider was dismissal, but, despite that, the Bank had not said 	in advance of the meeting that the existing medical evidence was inadequate to 	that end.
We interpose that on 31st October 1996 Mr Haggett may very well have been told that unless the Bank could obtain a specialist opinion it did not then have sufficient grounds for a recommendation of ill-health retirement to the Pension Fund Trustees but since there had (said Mr Haggett) been advice to Mr Haggett that Mrs Davis’s condition was deteriorating , there had been the counselling, the Counsellor’s report, and the GP’s certificate of unfitness for work for 6 months from 29th January 1997.
(v)	The Bank had argued that it was for a claimant to provide the necessary 	evidence to support a claim for ill-health retirement.   The Pension Scheme 	(or, at all events, the part we were shown) makes no such provision, nor does 	commonsense suggest any such an invariable requirement, but the Tribunal 	used the point chiefly to emphasise that were that so then a reasonable 	employer acting reasonably ought to have made it clear in the letter of 22nd 	January that on the existing medical evidence ill-health retirement was not an 	option;
(vi)	The Bank had not asked Mrs Davis’s own GP or any other medical 	practitioner the specific question of whether Mrs Davis’s condition was such 	that she should be considered for ill-health retirement.   We interpose that it 	was not as if her case was fanciful;  her own GP supported it and (as we shall 	find when we turn to disability) it was later conceded that Mrs Davis had an 	adjustment disorder, a clinically well-recognised mental impairment with 	long‑term effects.
(vii)	If Mrs Davis’s advisers had been told “the reality of the situation”, namely that 	on the existing medical evidence early retirement on ill-health grounds was not 	an option, then she “would have been able to address the matter of additional 	medical evidence  had she so required or made such representations as she 	considered appropriate”.
9.	The Tribunal concluded that the decision to dismiss in the circumstances fell outside the responses of a reasonable employer acting reasonably and fairly and that the Bank thus failed to satisfy the requirements of section 98 (4) of the 1996 Act.   Mrs Davis had been unfairly dismissed.
10.	Mr Short complains that the issue of medical retirement concerns only the terms on which employment was to end rather than whether it should end and hence was not a matter for the Tribunal to take into account in deciding whether  the decision to dismiss was reasonable.   He cites the early case of Treganowan -v- Robert Knee & Co. [1975] IRLR 247 but that case emphasises that in unfair dismissal cases the question is whether the dismissal is unfair, not whether it is (contractually) wrong - see para 17.   We see it as open to a Tribunal to regard it as unfair to invite an employee’s representative to a meeting on one basis - namely that there was a plurality of options, including medical retirement, for consideration - when in truth the employer no longer regarded medical retirement as open and where, as the Tribunal found, the inevitable outcome was termination and where no prior warning was given of the current inadequacy of the medical evidence by then provided.   We do not need to say (indeed, it would be irrelevant of us to say) that we would have regarded the dismissal that the meeting led to as unfair but on the Bank’s argument thus far and having regard to the 7 factors we have mentioned, we are unable to say that such a conclusion on the Tribunal’s part was arrived at or could only have been arrived at in error of law.
11.	Next Mr Short complains that the findings of fact made by the Tribunal were not sufficient to justify its conclusion.   If the Tribunal had made findings of fact as to the dealings between the parties in 1996, he says, the Tribunal would have had to conclude that the Davis side had been made thoroughly aware that no sufficient medical evidence had been produced by Mrs Davis to justify early medical retirement and that it was thus wrong of the Tribunal to latch on to the failure of any mention of the point in the letter of 22nd January 1997.
12.	As to that, we have mentioned that on 31st October 1996 Mr Haggett (and thus, for present purposes, Mrs Davis too) was told by the Bank:-
“Unless we can obtain a specialist opinion, we do not have sufficient grounds for a recommendation of retirement on ill-health grounds ...”.
So far as concerns onus, it may be noted that it is “Unless we can obtain” rather than “Unless you can produce”, but in any event, as we have already mentioned, there had, in the interval from 31st October 1996 to 5th or 14th February 1997, been further medical developments including a fresh certificate of unfitness to work before July 1997.   The Tribunal could have added to what was already a long decision a careful setting-out of every contact from 31st May 1995 to 14th February 1997 but we are not prepared to assume those contacts were not considered simply because they were not expressly mentioned.   
13.	Mr Short refers us to Links -v- Rose [1991] IRLR 353 as supporting his proposition that in ill-health cases where what is in issue is what consultation was necessary or desirable and whether that degree of consultation had taken place, there should be findings of fact dealing with all the exchanges between the parties.   That there manifestly was not.   However, Links -v- Rose purports to lay down no such universal rule.   In that case the Court of Session, Outer House said, speaking of the findings in that case:-
“What we should have expected to see would have been findings in fact which dealt with all the exchanges between the parties ...”.
A little later Lord McCluskey added:-
“It is the responsibility of a judicial tribunal to determine, on a balance of probabilities, what the material facts are”.
There is no suggestion there that in every case every exchange between the parties is inevitably a material fact as to which an express finding has to be made, nor that it is inescapably an error of law on a Tribunal’s part to omit an express finding on any such exchange.   The question in each case is whether such facts as are expressly found by the Tribunal or as, upon a fair reading of the decision, can properly be taken to have been accepted by the Tribunal, justify the conclusion at which it arrived.
14.	As to that, whilst we have taken into account Mr Short’s careful analysis of the events not expressly referred to by the Tribunal, we do not feel able to describe any of the seven factors we have mentioned as not open to have been found by the Tribunal, nor, after hearing the whole of the Bank’s argument, do we feel able to say that the conclusion that the dismissal was unfair represented an error of law.
15.	We dismiss the Bank’s appeal as to unfair dismissal.
QUANTUM
16.	The Tribunal was persuaded by Mr Clay (rightly, in our view) that it was appropriate to look at the situation in 1997 to consider what might have happened had Mrs Davis not been unfairly dismissed by the Bank.
17.	In the liability decision the Tribunal had been critical of the attitude of the Bank which was that it was Mrs Davis who was behaving unreasonably.   The Bank, said the Tribunal:-
“.... having failed to recognise that they had created a problem situation in March 1995 by removing [Mrs Davis] from her established post without at least providing her with a suitable alternative position, thereafter failed to adequately and  positively deal with the situation they created.   They had opportunities to do so”.
The last is a reference to the grievance procedure invoked by Mrs Davis and, perhaps, also to her appeal against her dismissal.   In the remedies decision the Tribunal referred to the persisting vision of the Bank that it was Mrs Davis who was being unreasonable and not that the situation was of their own creation as being a “tunnel vision” approach and held:-
“It is conceivable, however, that if [the Bank] had been able abandon their “tunnel vision” approach to dealing with [Mrs Davis], the situation and therefore [her] employment might have been retrieved.   There had been a  partial apology by the [Bank] in 1995 for the way in which  [Mrs Davis’s] removal from her position had been  handled and which was causative of the problems that arose thereafter.   The [Bank] however were unwilling to recognise that fault lay with them and in effect treated [Mrs Davis] as the cause of the problem”.
Mrs Davis gave evidence at the Remedies hearing and the Tribunal held that the fact that there had been the Liabilities decision that she had done nothing wrong had helped her recovery.   If only the Bank had earlier appreciated and had acknowledged to Mrs Davis that she had done nothing wrong and that there had been an underlying unfairness to which she had been subjected and that that was the reason for her absence from work then, held the Tribunal, there was a prospect that she would have returned to work for the Bank on the expiry of her last medical certificate from her own GP on 12th August 1997.   Indeed, continued the Tribunal:-
“... a reasonable employer acting fairly, dealing with an employee of 27 years service ought to have been looking at ways of getting [Mrs Davis] back to work which,  in the context of reasonableness and acting reasonably includes taking account of all relevant facts and matters relating to the particular circumstances and recognising that fault or blameworthiness might rest with themselves thus  enabling them to adopt a positive and constructive approach to the situation that had to be dealt with”.
On this basis the Tribunal did its sums on the assumption that Mrs Davis, had she been treated fairly, would have returned to work on or about 12th August 1997.
18.	Mr Short attacks that approach on 3 grounds.   First he says that the Tribunal’s own language indicates that there was merely a chance or prospect that Mrs Davis would return to work on or about the 12th August 1997 had she been fairly treated.   The Tribunal calculated the award on the footing of a certainty of return on that date yet truly, he says, the award should have been discounted to reflect that such return was not a 100% certainty.
19.	In answer Mr Clay does not dispute the law but points out that there is nothing inevitably wrong in a Tribunal proceeding upon a certainty of a return to work on a given date;  all depends on the facts.   Here, says Mr Clay, the Tribunal not only had medical evidence but had heard Mrs Davis both at the Liability hearing in October 1998 and at the Remedies hearing in May 1999.   They saw for themselves that her health by May 1999 was considerably improved from that observable at the earlier hearing and they heard her evidence (and accepted it) that the finding that she had done nothing wrong had helped her recovery.   The Tribunal alone was able to assess the likelihood of a return to work by or on a given date on the basis of the totality of the evidence.   We, the Appeal Tribunal, do not even have Chairman’s notes.
20.	We prefer Mr Clay’s argument.   Given that the Tribunal’s task was inevitably hypothetical some latitude needs to be afforded it and it alone was enabled to determine the matter on the basis of the whole of the evidence.   There is nothing inherently wrong in a Tribunal proceeding on the basis of a 100% certainty and nothing, either, which, in the light of the totality of the evidence, showed that the Tribunal’s assumption as to 12th August 1997 was an error of law.
21.	Mr Short’s second line of attack derives from Gilham -v- Kent [1986] ICR 52;  given that the Tribunal held that Mrs Davis was not sufficiently well to return to work until May 1999, it could not have been right to assess compensation on the footing of a return to work in August 1997.   The point is a bad one.   The finding as to a return to work in August 1997 was on the basis of the Bank having abandoned its “tunnel vision” at an early stage, probably in the course of Mrs Davis’s appeal against her dismissal.   But that was a hypothesis (albeit the right one).   However, the Bank did not then abandon its “tunnel vision” and it was not until some 4 months after the Tribunal’s Liability decision had lifted some at least of Mrs Davis’s concern from her in January 1999 that she was sufficiently well to return to work in May 1999.   There is, in other words, nothing inherently contradictory between the Tribunal’s conclusion, on a particular and correct hypothesis, of a return to work in August 1997 and its conclusion, in the events which actually happened, of unfitness to work until May 1999.   Indeed, that Mrs Davis took only 4 months from the publication to her of the exculpating Liability decision to recover suggests that there might even have been a chance of her recovering, if only the Bank had made clear that it was at fault and that she was not, sooner than at the end of the 6 months which the Tribunal held as appropriate.
22.	Next Mr Short argues that the Tribunal’s conclusion that there was a more than speculative prospect of Mrs Davis returning to work on 12th August 1997 (indeed their finding that there was a 100% prospect of that) was perverse.   He bases the argument on the written evidence of Dr M.R. O’Connell, Consultant Psychiatrist, given on Mrs Davis’s behalf.   However this argument, too, confuses hypothesis and fact.   Dr O’Connell was addressing the situation in which the Bank had not acknowledged that it was at fault nor that Mrs Davis was blameless and in which the resolution of the case was to be only by way of a Tribunal hearing which had not yet happened.   There is nothing in his advice which denies force to the Tribunal’s conclusion that, if only the Bank had abandoned its “tunnel vision” sooner (an hypothesis) then some 6 months after, by August 1997, Mrs Davis would have been able to return to work.   Indeed, the Tribunal’s notion of adding 6 months in order for Mrs Davis to recover derived from Dr O’Connell’s view that she would be likely to need that period for recovery.   He was adding 6 months after the lifting of stress upon a Tribunal decision in her favour.   He was, in other words, attempting to deal with the “real world”, but there was nothing perverse in the Tribunal’s adoption of 6 months in the hypothetical situation it had to consider.   Indeed, if one had to take the “real world” as a base, then, as we have mentioned, the Tribunal could have added only 4 months after the exculpation in order to allow for Mrs Davis to recover.
23.	Mr Short had a possible further argument about the incapacity benefit received by Mrs Davis requiring to be taken into account but it was left over in case it became material.
24.	We have now dealt with all the argument on the Quantum appeal.   We find no error of law and we dismiss the Bank’s appeal.

RE-ENGAGEMENT
25.	Here the appellant is Mrs Davis.   Mr Clay had confirmed to the Tribunal below that re-instatement was not sought but that re-engagement was.   The Tribunal was referred to and itself sets out the relevant parts of sections 113,115 and 116 of the 1996 Act.   Of all the many issues given to Tribunals to decide there can be few better left as the exclusive province of the Tribunal as the “Industrial jury”, drawing on their carefully balanced experience of industry, than the issue of the practicability of re-engagement as raised by section 116 (3) (b).   the Tribunal concluded:-
“... in circumstances where there has been a breakdown in trust and confidence and in this case the Tribunal has concluded that such a breakdown had occurred, the Tribunal acknowledges that it is only in rare cases that the remedy of re-engagement is practicable (see Wood Group Heavy Industrial Turbines -v- Crossan (1998) IRLR 680).   In addition, when this is coupled with other factors - including in this case the question of the Applicant’s health, adopting what it considers to be a commonsense approach, the Tribunal has unanimously concluded that to order re-engagement in this case would be impracticable”.
26.	As for trust and confidence, the Tribunal had seen and heard the parties.   It held that it had been aware of an undercurrent of feeling between the parties such that it concluded that trust and confidence between them had been eroded substantially and significantly.   The Tribunal was far from convinced, despite Mrs Davis’s wish to return to the Bank:-
“.... that if she did so there would be sufficient mutual trust and confidence between the parties to produce an effective and sustained working relationship”.
27.	As for Mrs Davis’s health, her own Consultant Psychiatrist, Dr O’Connell, had said that for her to return to work for the Bank would produce a risk of relapse.
28.	There were peripheral difficulties - the organisation of a rehabilitation programme, the need for re-training- that would have made it difficult for the Tribunal to specify (as, under section 115 (2), it would be required to do) the nature of the employment and the date by which the order had to be complied with - but, as we have seen, it was the health risk and the breakdown in trust and confidence on which the Tribunal chiefly relied for its conclusion that re-engagement was not practicable.
29.	Mr Clay’s argument first attacks the peripheral difficulties but in doing so misunderstands the Tribunal’s reasoning.   The Tribunal was not saying that because a rehabilitation programme or because re-training was necessary re-engagement was impracticable but rather that on the facts of this particular case it was not satisfied it could specify as section 115 (2) required it to.   In any event those matters were peripheral;  Mr Clay’s argument has no answer to the important point made by Mrs Davis’s own Consultant Psychiatrist that for her to return to work for the Bank risked her having a relapse.   So far as concerned any breakdown in trust and confidence (and, through her Counsel, Mrs Davis had at the Tribunal below referred to the Bank’s treachery, ruthlessness and deception), that, Mr Clay argues, confuses her relationship with the Bank and that with some particular employees who have since left the Bank.   However the distinction between relations with the employees who had left and relations with the Bank itself was drawn in argument before the Tribunal so that when the Tribunal spoke of the undercurrent of feeling between the parties and of its being far from convinced there would be sufficient mutual trust and confidence between the parties it presumably meant exactly what it said, thus seeing the breakdown as going beyond the relationship with the Bank’s employees who had since left.   Mr Clay argues that the breakdown was at least in large part the Bank’s fault and that it should not be permitted to profit from its own wrong.   There is, though, no question of profiting from a wrong, even if there is a wrong in the material sense;  the Bank, if there is no re-engagement, is obliged to pay the compensation we have already dealt with.
30.	Next Mr Clay points out that the Bank was part of the NatWest Group and that the Tribunal failed to consider the practicability of Mrs Davis being employed outside the Bank but within the Group.   Mr Short’s answer seems conclusive;  the Tribunal was never addressed on the basis that NatWest Group or any other company was, within section 115 (1) and section 231, an “associated employer”.
31.	Finally, Mr Clay argues that the Tribunal set itself the wrong test;  the issue (if we properly understood the point) was not whether to order re-engagement would be impracticable but whether it was practicable for the Bank to comply with an order for re-engagement.   There will be cases where the difference will be significant but this, in our view, is not one of them.   We are quite unable to discover any error of law in the Tribunal’s conclusion on this point.   The Tribunal took, as it said, a commonsense approach, one with which we are unable to find fault.   We dismiss Mrs Davis’s appeal on this subject.
DISABILITY DISCRIMINATION
32.	Of the many issues that can arise where a complaint is made under the Disability Discrimination Act 1995 a primary one is whether the complainant is “a disabled person”;  without that being the case there can be no discrimination within section 5 (1) or (2) and no unlawful discrimination by an employer within section 4 (1) or (2), nor any duty to make adjustments under section 6.   Given the nature of her complaint Mrs Davis therefore needed to show herself to have a “mental impairment” which had a “substantial and long-term adverse effect” on “her ability to carry out normal day-to-day activities” - see section 1 of the Act.   Schedule 1 of the Act, to which section 1 is subject, further explains some of those terms.
33.	Thus under paragraph 1 (1) of that Schedule a mental impairment is required to be the result of or to consist of a clinically well-recognised illness.   As we have mentioned, it was conceded by the Bank that Mrs Davis suffered from an adjustment disorder, a clinically well-recognised illness.
34.	As for whether her mental impairment affected her ability to carry out normal day‑to‑day activities, paragraph 4 of Schedule 1 (leaving out provisions not material to this case) provides:-
“4. (1)	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-
		.......
(g)	memory or ability to concentrate learn or understand”.
Paragraph 4 (1) is not concerned with the substantiality or duration of the effect on the complainant’s ability but solely with the question of whether there can be taken to be any effect at all upon the ability to carry out normal day-to-day activities.   There is provision for particular effects to be prescribed by regulation to be substantial or not under paragraph 5 but no regulations of that kind have been drawn to our attention.
35.	We concentrate on “memory or ability to concentrate, learn or understand” because before the Liability hearing there had been an Interlocutory hearing at which issues were identified and agreed.   As the Tribunal held, what had been agreed was, so far as discrimination was concerned, as follows:-
“(c)	Disability Discrimination:  the detriment complained of is the Applicant’s dismissal.   The impairment on which the Applicant relies is clinical depression which has lasted over 12 months  as it was first diagnosed in May 1995 ....   The day-to-day activities which are substantially impaired are the Applicant’s memory and the ability to concentrate and understand. 
(d)	The Respondent disputes the Applicant’s impairment and this effect on her day-to-day activities”.
36.	Although in Employment Tribunal cases it is common for a rather relaxed view to be taken of pleadings or their equivalent, here what were to be the issues had been specifically ruled upon and agreed in advance and expert medical opinion had then been sought to address those specific issues.   It was thus proper for the Tribunal to consider, as the only day-to-day activities in issue, Mrs Davis’s memory, ability to concentrate, learn and understand.
37.	There was no issue as to such adverse effect as there was not being long-term;  it was accepted the effect was, within the meaning of the Act, “long-term”.   The battleground was plainly going to be whether the adverse effect was on the memory or the ability to concentrate, learn or understand and whether, if it was, it could be described as “substantial” within section 1 (1).
38.	As for what is meant by “substantial” in context, section 53A  (8) of the Act and section 51 (5) (one to be repealed and the other to replace it) both require a Tribunal to take into account any provision of a Code of Practice which appears to be relevant to a question before it.   The 1996 Code of Practice contains, at Annex 1, explaining section 1 of the Act, a note that a substantial adverse effect is something more than a minor or trivial effect.   Section 3 of the Act enables the Secretary of State to give guidance which , again, a Tribunal is to take into account where it appears relevant - section 3 (3).   The Guidance issued to take effect from 31st July 1996 repeats at Part II (A1) that a “substantial” effect is one which is more than “minor” or “trivial”.
39.	At the Liability hearing in October 1998 Mrs Davis relied on the evidence of her Consultant Psychiatrist, Dr M.R. O’Connell;  the Bank on the evidence of Dr Dinshaw Master.   Both were massively well-qualified to deal with the questions put to them.   Both put written reports to the Tribunal as their evidence in chief and both gave oral evidence.
40.	Dr O’Connell’s report was based on his examination of Mrs Davis in January 1998, over 8 months before the hearing.   His examination was thus also before the Interlocutory hearing which had limited the relevant adverse effects required to be considered to those in Schedule 1 para 4 (1) (g) of the Act.   His initial report and subsequent letters are generally more concerned with whether and when Mrs Davis might be expected to return to work but, after referring to Mrs Davis as feeling degraded and after reference to Mrs Davis’s GP having certified her as unfit to work through stress and after a further reference to Mrs Davis as having seen another (unidentified) Consultant Psychiatrist now known to be Dr Craggs, who had identified her as suffering from a depressive illness, Dr O’Connell continued (with our emphasis):-
“In my opinion, given the above, her ability to concentrate and retain information would have been significantly impaired interfering with her ability to carry out day-to-day activities.   It is clear that this substantial impact had persisted for longer than 12 months”.
He mentions no tests on memory or concentration or comprehension as carried out by him and the unhelpful words we have emphasised suggest his view was more derived from the work of others than resulting from his own examination.   It is fair to remind ourselves, though, that at the stage of that report the particular later focus on paragraph 4 (1) (g) had not yet occurred.
41.	Dr Dinshaw Master examined Mrs Davis for 2 hours 35 minutes on 30th July 1998.   She told him her memory was “O.K.”.   She never had any trouble following programmes on television.   It was clear that she could take in what she read perfectly well.   She was normally orientated in time, place and person.   Her short-term memory, on standard clinical testing, was normal.   She was able to concentrate normally.   He thought that Dr O’Connell’s opinion cited above was unwarranted.   It was, he thought, possible that Mrs Davis suffered some minor impairment of concentration but he noted that Dr Craggs, to whom Dr O’Connell had referred, had said “There was no apparent problem with cognition” and Dr Master’s own assessment based on his examination was that Mrs Davis had no significant impairment of memory or the ability to concentrate learn or understand.   His report in terms states that he had read both the Code of Practice and the Guidance and his conclusion, in relation to the only day-to-day activities in question, those in paragraph 4 (1) (g), was that Mrs Davis did not suffer substantial adverse effects within the terms of the Act and was not suffering from a disability within the Act.
42.	The Tribunal held:-
“Regarding “Disability Discrimination”, the Tribunal has considered the reports and evidence of Drs O’Connell and Masters [sic] and on balance prefers the evidence and conclusions of Dr Masters [sic]”.
A little later they add:-
“... the Tribunal prefers the approach adopted by Dr Masters [sic] and his conclusion that the Applicant was not disabled within the meaning of “disability” as defined in the” [1995 Act].
43.	Mr Clay argues that the Tribunal never asked itself the right question and that its decision was perverse.
44.	As for perversity, Mr Clay produces a list of manifestations of Mrs Davis’s illness;  she has on many occasions been so anxious she has been physically sick, she has slept poorly, she has become introverted, she nods off during the day and so on.   In the circumstances a conclusion that she was not disabled led, he said, to the classic expletive characteristic of a perverse conclusion, namely “My goodness, that must be wrong”.   However, many of the manifestations on Mr Clay’s list are not only outside the area agreed to be in issue (memory or ability to concentrate, learn or understand) - for example Mrs Davis’s loss of interest in cooking, cross-stitching and knitting - but are altogether outside the whole of paragraph 4 of the Schedule to the Act (such as poor and irregular sleeping and pain when lying down).   It is perhaps surprising that an impairment such that a person cannot sleep or is in frequent pain can fall outside paragraph 4 and hence fall outside the Act and it may be that with experience of its practical workings the legislature may add to paragraph 4 but when we confine consideration, as the Tribunal had to, to matters within 4 (1) (g), we are quite unable to describe the Tribunal’s conclusion, in the light of the expert assistance it was given, as perverse.
45.	As for the Tribunal not asking itself the right question, Mr Clay’s complaint is that the Tribunal simply delegated its task to Dr Master and that it was wrong for it to have done so.   We would accept that for a Tribunal, without spelling out its understanding of an expert’s evidence and without giving reasons for its preference, to say that it prefers the approach of that expert and his conclusions is a practice to be discouraged.   However, Dr Master’s findings were clear and unusually comprehensive and, given that it would have been entirely acceptable for the Tribunal to have spelled them out and then to have accepted them, it seems little more than pedantic to complain of the brief way in which the Tribunal did express its conclusion.   That Dr Master was of the view that the adverse effect on memory or ability to concentrate, learn or understand was not, within the terms of the Act, the Code of Practice and the Guidance, “substantial” was clear.   That such was the view adopted by the Tribunal was equally clear and there were reasons to prefer his view, demonstrably based on his own tests and assessment, to that of Dr O’Connell.   Moreover, only the Tribunal had the advantage of seeing and hearing all the evidence on the point.   Whilst we would have certainly preferred to see the Tribunals’ views more fully set out, they are clear enough and we cannot describe their approach, although to be discouraged, as revealing any error of law on the question of substantiality.
46.	There were other issues raised on the disability appeal but as Mrs Davis fails on this primary one it is unnecessary to deal with the others.   We cannot leave the subject of disability without expressing some concern that one can have a person put at huge disadvantages such as, for example, being unable to sleep or being in frequent pain who yet, for want of being within one of the boxes of para 4 (1) (a) to (h), must be taken not to be disabled but that is a matter for the Legislation rather than for us.   Limiting ourselves, as we must, to asking whether Mrs Davis has shown there to be error of law in the Tribunal’s conclusion and reasoning on the point, we find none and therefore dismiss the appeal.
47.	Accordingly, for the reasons we have given, each of the four appeals is dismissed.