Appeal No. EAT/1151/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 April 2002

Before
MR RECORDER LANGSTAFF QC
MR D J HODGKINS CB
MS B SWITZER

HASHIMOTO LTD	APPELLANT

MR G MCINTOSH	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR M SUTTON
(of Counsel)
Ward Hadaway House
102 Quaside
Newcastle upon Tyne
NE1 3DX	

RECORDER LANGSTAFF QC:
1.	This is a preliminary hearing in an appeal against the decision of the Employment Tribunal sitting at Newcastle.  Extended reasons for that decision were promulgated on 8 August 2001. 

The Facts
2.	The Employment Tribunal found that the employee was disabled.  They found that his employer, the Appellant had discriminated against him within the meaning of the Disability Discrimination Act 1995.  They found that the employee had been unfairly dismissed, and finally they found that he had suffered an unlawful deduction from wages contrary to section 24 of the Employment Rights Act 1996.  This appeal relates only to the first three of those findings.  

3.	The essential facts are that Mr McIntosh suffered from depression and anxiety.  There was no dispute as to that.  There was a dispute as to whether or not it was of such a nature as to constitute a disability.  The Tribunal concluded that it did.  It further concluded that in the events that happened thereafter, the employer had subjected Mr McIntosh to less favourable treatment.  He was off work by reason of his illness, having submitted a sick certificate on 12 February 1999, when he was said to be observed at a party at which other employees were present on the very next day, 13 February and is alleged to have been drinking at that party.  Accordingly the employer, who would otherwise have paid sick pay throughout the period of his disability, suspended payment, intimated that disciplinary proceedings would be taken and maintained that stance without paying sick pay until, finally, on October 11th 1999, Mr McIntosh resigned from his employment on the basis that there had been repudiatory conduct by his employer in failing to pay the sick pay or suspending payment of it.  

4.	There are three grounds of appeal in essence, two of which relate to the finding by the Tribunal that there had been discrimination under the Disability Discrimination Act.  The third relates to the finding in respect of constructive unfair dismissal.  In respect of the finding of disability, the two grounds essentially are that the Employment Tribunal did not sufficiently express the reasons for its conclusion, or reached an impermissible conclusion in the way that it treated the evidence before it of a doctor called by the Respondent.  

5.	We will give permission as will be apparent from the rest of this decision, in respect of the second ground of objection, but the second ground only, which relates to whether or not the Tribunal properly identified the yardstick against which it was to assess the question of whether the treatment of the employee was or was not justified within the meaning of section 5 of the Disability Discrimination Act.  We consider both that the Employment Tribunal may not have had in mind the principles identified subsequently in the case of Jones v. The Post Office (2001) EWCA 558 and in any event may not sufficiently have said against what standards justification was to be measured when they found it to be absent.  However, because we propose to reject the appeal at this stage on the basis that there is no properly arguable case in respect of the first and third grounds urged before us by Mr Sutton, albeit persuasively on behalf of the Appellant, we have to give full reasons.  

6.	The first ground, then, focuses upon a passage in paragraph 10 of the decision of the Tribunal.  The relevant part reads as follows:

“The Tribunal felt unable to accept that Doctor Lough’s contentions as to the deduced effect if the applicant had not been on medication and counselling as being relevant only to the duration of the period of depression and not to its severity.  The majority found that in the absence of such treatment, the probability is that the applicant would clearly have satisfied the test even if he did not do so disregarding it.”

What Mr Sutton says of this is that the Tribunal either had no proper basis for relying upon their own view, that in the absence of treatment the probability is that the Applicant would have satisfied the test of disability or did not sufficiently express their reasons for feeling unable to accept Dr Lough’s contentions.  They give their reasons for feeling unable to do so. Moreover, in continuing in the last 9 words of the passage I have quoted as the Tribunal did, was to suggest, argued Mr Sutton, that the Tribunal were finding as a fact that with treatment the Applicant might not have satisfied the appropriate test.  Therefore Dr Lough’s evidence was of central importance.  

7.	We have given anxious consideration to whether this demonstrates an arguable case that the Tribunal were wrong.  We have considered however, that the argument elevates the evidence of Dr Lough and this particular passage in the decision to a centrality which cannot be justified.  It is axiomatic that a decision must be read as a whole.  It is frequently the case that decisions might be better expressed.  The difficulty with Mr Sutton’s argument is that it focuses upon the words at the end of the passage we have quoted and pays insufficient regard both to the context and to the words which precede it.  The question which the Tribunal were addressing at this part of its decision was whether or not the employee was suffering from a disability, that is, did he have, in the words of section 1 of the 1995 Act:

“a physical or mental impairment which had a substantial and long term adverse effect on his ability to carry out normal day to day activities.” 

It is well established now that a substantial adverse effect is one which is not insubstantial and that normal day to day activities are to be assessed against a number of criteria.  The Tribunal concluded that there was a substantial effect upon the Applicant’s normal day to day activities in terms of his mobility.  (That was a decision reached by a majority) and upon his memory or ability to concentrate, learn or understand (that was a decision reached unanimously).  

8.	In the view of the majority, which in so far as it is a view of fact is binding upon us,  the depression had that effect even with treatment.  So it is recorded at paragraph 10(i)(a),

“the appellant found it difficult to leave his house, if not on a daily basis, at least on a substantial number of occasions.”  

His evidence was accepted as to why he had not attended.  Moreover, the majority accepted the evidence obtained in what was described as a form IB85, which we have been told was an application resolved in November a little while after his resignation, whereby he was granted incapacity benefit.  

9.	There was also evidence, which it appears the Tribunal accepted, that he found it difficult to motivate himself in performing DIY activities, in particular the laying of a patio, and this appears to be despite the fact that he had been receiving medication.  Accordingly, by the time the decision came to deal with the evidence of Dr Lough, the context was that the Tribunal were expressing the view that they accepted the evidence of the Applicant just described.  Therefore it seems obvious if the context is considered that their inability to accept Dr Lough’s contentions as to the deduced effect first related only to that evidence and could not have affected the decision that the employee was disabled, because that was already resolved by their acceptance of his own evidence and that of the form IB85 to which they had referred.  Also, their acceptance of that evidence undoubtedly must have informed the view that they took of Dr Lough.  

10.	The passage upon which Mr Sutton focussed is difficult in its wording.  However the plain meaning of it is that with treatment he either did not or might not have satisfied the test in some respects, but without it, undoubtedly would have done.  Although that is not necessary for the decision given the findings already reached, we consider that those last few words do not sensibly give rise to any arguable case that justify an attack upon the first words of that sentence, finding that in the absence of treatment, the Applicant would have clearly satisfied the test.  That was what was relevant.  It is not in our view adversely affected by the words which come at the end of the sentence.  It is as we say, reading too much into a few words in a long and detailed decision, when there was (as was freely and frankly conceded by Mr Sutton) ample evidence upon which the Tribunal could have put the decision beyond argument had they expressed the matter differently.

11.	We turn then to the question of whether or not there is any arguable case that the employee had so conducted himself as to have affirmed the contract.  The context of this was that the employee claimed that he resigned from employment because his sick pay had been suspended.  The Tribunal accepted as a matter of fact that that was why he had resigned.  The question that then arose was whether or not he had so acted between the last date upon which the breach occurred and his resignation as to disentitle him from treating the conduct of his employer as giving rise to a right in him to treat the breach as discharging him from further performance of his obligations.  

12.	What the Tribunal say halfway through paragraph 14 is in these words;

“It is correct that the obligation to pay sick pay only continued for a period of six months and accordingly expired in mid August.  There was a further delay of nearly two months thereafter but in the view of the Tribunal this must be looked at against the background that the applicant was continuing to be treated for depression seriously enough to satisfy the test of disability.”

Those words were the words upon which Mr Sutton’s argument principally centred.  However once again, those words have to be seen in context.  The passage continues in these terms;

“The Tribunal in particular considered the case of Bashir v. Brillo Manufacturing Company.  In that case the EAT upheld that an employee’s delay of ten weeks before resigning following a disciplinary demotion was not unreasonable delay when he was off sick throughout that period.  The EAT drew a distinction between someone who elects to continue working under a contract of employment following a breach and someone who is on the sick.  In the latter case there is less likely to be an affirmation of the contract.”

13.	The question the Tribunal were addressing was whether or not the delay in the circumstances was such that they should consider this employee to have affirmed this contract.  The decision was one to which the Tribunal was undoubtedly entitled to come.  It was not a perverse decision in the sense that there was no evidence to support it.  There plainly was.  The criticism is that the Tribunal picked out one factor, that is that the Applicant was continuing to be treated for depression, seriously enough to satisfy the test of disability.  It is said by Mr Sutton, that in the light of the earlier though somewhat delphic comment in paragraph 10 to which we have already referred, it might be that the Tribunal concluded that with treatment he was not in fact disabled in any practical use of the word, albeit that he might have been disabled within the meaning of the Act.  With treatment he was arguably able to deal with the demands of accepting the employers conduct as putting an end to the contract.  

14.	However, the words that followed plainly show that the Tribunal were taking into account a distinction between someone who was working on one hand and someone who was off sick on the other.  They note that in the latter case there was un-likely to be affirmation of the contract.  That must undoubtedly be so, because the employee will be doing nothing - except delaying - to indicate that the contract is still treated by him as binding upon him.  In our view the Tribunal here were saying no more than that the delay had to be looked at in context, that part of that context was that here was a man who was off sick for the time that he undoubtedly was on the earlier findings of fact from the Tribunal.  They concluded that the delay in that context was not such as to amount to an affirmation.  That is a finding of fact with which this Tribunal could only interfere if there was some error of law.  We do not think that there is any arguable basis for suggesting that there is an error of law in that respect.  

15.	It follows that this appeal should proceed and proceed only upon the ground that relates to justification.  So far as that is concerned we think that the matter should take no more than 2 hours to argue, that it should be listed in category C, that no less than one week prior to the hearing there should be skeleton arguments together with photocopies of any cases upon which the parties intended to rely.  We do not think unless we hear submissions to the contrary that there is any further direction which is required.