Appeal No. EAT/0442/02 MA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 September 2003
Judgment delivered on 29 October 2003

Before
MR RECORDER LUBA QC
MR D J JENKINS MBE
MRS M V McARTHUR

DR VALENTINA VALKOVA	APPELLANT

DEPARTMENT OF WORK AND PENSIONS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR TONY PULLEN
(Representative)
Instructed by:
Hammersmith & Fulham Community Law Centre
142-144 King Street
Hammersmith
London W6 0QU	
For the Respondent	MR PHILIP COPPEL
(of Counsel)
Instructed by:
Office of the Solicitor
Department of Work & Pensions
Sutherland House
29-37 Brighton Road
Sutton	

MR RECORDER LUBA QC

1	This is an appeal brought by Dr Valentina Valkova against a decision of the London (Central) Employment Tribunal promulgated on 7 March 2002.  By its decision the Tribunal unanimously determined that the Applicant did not have a disability within the meaning of section 1 of the Disability Discrimination Act 1995.

The Application to the Employment Tribunal

2	The Tribunal had before it an amended Originating Application first presented by Dr Valkova in 1997.  The Respondent to the application was the Department for Work and Pensions.  Dr Valkova had been employed by the Respondent as a Medical Adviser in its Benefits Agency Medical Services Division.  Dr Valkova had applied for that appointment by completion of an application form and had also completed a health declaration in which she had answered the question “Do you have a physical disability?” with the answer “Small weakness in the right hand”.  Her appointment had commenced on 1 May 1995 and was for a fixed term of a little under two years.

3	Dr Valkova’s work essentially involved the writing of reports in relation to claims made for disability benefits to the Benefits Agency Medical Service.  The work involved a good deal of handwriting.  Dr Valkova is right-handed.  It was her evidence to the Employment Tribunal that from mid-July 1995 she began to suffer from symptoms in her right forearm and hand that gave rise to a physical impairment.  Her evidence was that on a day-to-day basis her use of her hand was very limited and that she had cramps that were very strong and were caused by almost every activity.  Of course, given that account, her ability to write was impeded.

4	Dr Valkova took sick leave on 15 August 1995 and did not thereafter return to work for the Respondent.  Towards the end of 1996 the Respondents contemplated her dismissal in view of her continued absence from work and her employment was finally terminated by a dismissal which took effect on 7 December 1996.  By her response to notification of dismissal Dr Valkova wrote to the Respondents seeking an appeal and asking “that you would review and reconsider your decision in regard to the termination of my employment and grant me an early retirement on grounds of ill health”.

5	Neither the appeal nor the request for early retirement on the ill-health grounds were successful and in March 1997 Dr Valkova presented her Originating Application to the Employment Tribunal Service.  That was subsequently amended and by the amended application Dr Valkova invited the Tribunal to decide whether she had been discriminated against contrary to the provisions of the Disability Discrimination Act 1995 by virtue of her dismissal in December 1996.

6	After a very considerable delay, that application came on for hearing before an Employment Tribunal in March 1999.  In circumstances which need not be reviewed in detail in this judgment her application did not succeed and led to an appeal to this Employment Appeal Tribunal.  That appeal was allowed by order of the Employment Appeal Tribunal on 29 June 2001 and the matter remitted for consideration by a differently-constituted Employment Tribunal.  The Employment Appeal Tribunal (Mr Justice Nelson presiding) also directed that there be an expedited directions hearing by the Employment Tribunal to ensure that the Originating Application was brought on for rehearing as soon as possible.

7	That directions hearing took place on 5 September 2001 before a Chairman of the Employment Tribunal sitting alone.  At the directions hearing Dr Valkova and the Respondent were both represented by Counsel.  The directions identify, as the first principal issue remaining for consideration, the question whether the Applicant was a disabled person within the terms of section 1 and Schedule 1 of the Disability Discrimination Act 1995.  It was clear at the directions hearing that both sides would be relying on medical reports.  Directions were accordingly given that the Applicant serve a medical report by 5 October 2001 and that the Respondent serve any medical report upon which it wished to rely by 15 November 2001.

8	In the light of the Applicant’s medical evidence the Respondent was directed to notify the Applicant and the Employment Tribunal Service whether the question of the Applicant’s alleged disability remained in issue.  Further directions were given as to the preparation of an agreed bundle of documents which process was to be completed by 8 December 2001.  The same directions hearing, i.e. the hearing on 5 September 2001, fixed a hearing for the consideration of the Originating Application for four days commencing 7 January 2002.  Formal notification of the dates of hearing was issued to the Applicant and Respondent on 27 September 2001.

9	In the event, Dr Valkova did, through her solicitors, disclose to the Respondent the medical reports and medical evidence upon which she wished to rely including two reports of Robin Butler, a Consultant Rheumatologist.  For its part, the Respondent commissioned a medical report from Mr Campbell Semple who is a Hand Surgeon.

10	By letter of 15 November 2001, complying with the directions, the Respondent supplied its medical report and confirmed that the question of the Applicant’s alleged disability remained in issue.  Thus it was that matter stood for hearing by the Employment Tribunal in early January 2002 to determine, principally, the preliminary question whether the Applicant was a person with a disability within the meaning of section 1 of the Disability Discrimination Act 1995.

11	As we have already recorded, at the conclusion of that hearing (which in the event occupied only 7 and 8 January 2002), the Tribunal decided that they were not satisfied that the Applicant did have a disability within the meaning of the statutory term.  It is convenient here to reproduce the statutory definition which is to the following effect (in section 1 of the Disability Discrimination Act 1995):

(1)	“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.”

12	There was before the Employment Tribunal no suggestion that the Applicant suffered from any mental impairment.  Thus the question for the Tribunal was whether the Applicant suffered from a “physical…impairment” which had the effect specified in the section.  The burden of establishing that fact or matter was on the Applicant throughout and it is plain from the material she put before the Tribunal that her evidence as to the existence of a physical impairment was to be her own evidence and that of Mr Butler, from whom medical reports had been commissioned by her.

The Appeal

13	By an amended Notice of Appeal dated 25 March 2003 it is contended by Dr Valkova that the Employment Tribunal erred in law in reaching the conclusion that it did on the question of disability.

14	The Notice of Appeal raises four discrete alleged errors of law.  Two are essentially of a procedural nature and the remaining two go to the substance of the Tribunal’s decision.  At our invitation Mr Pullen, appearing for Dr Valkova on the appeal before us, addressed the two procedural matters first.  We are grateful to him for his clear oral submissions on all four limbs of the appeal and also for his helpful Skeleton Argument.

15	The Respondents were represented before us by Mr Coppel of Counsel who also gave considerable assistance on all four points through his written and oral submissions.

(1)	The Application to Postpone

16	The Appellant’s first challenge to the Employment Tribunal’s decision was on the basis that it had wrongly refused her an opportunity for a postponement or adjournment of the hearing that had been fixed for 7 January 2002 and the days following.

17	Before dealing with the merits of that ground of appeal it is necessary to say a little more as to the history of events.  As we have already recorded, the hearing dates commencing on 7 January 2002 were fixed in September 2001, at which time Dr Valkova was represented by solicitors.  It appears that those solicitors continued to assist and represent her throughout the process of compliance with the Employment Tribunal directions up to and including agreeing the relevant bundle of documents (which process was to be completed by early December 2001).

18	However, later in December 2001 Dr Valkova was given notice by her solicitors that they would cease to act for her.  She was therefore, from late December 2001, an unrepresented Applicant before the Tribunal.

19	It then appears that Dr Valkova made an application to an Employment Tribunal Chairman for the postponement of the hearing fixed to commence on 7 January 2002.  By direction of this Employment Appeal Tribunal, given following the Preliminary Hearing of this appeal, we have been supplied with a copy of her written application and the decision upon that application made by an Employment Tribunal Chairman.  The letter requesting a postponement appears to have been transmitted by facsimile on the afternoon of Friday 4 January 2002, i.e. the last working day before the hearing was due to commence.

20	The application for a postponement raised two points.  The first was that the Applicant was in difficulty in arranging representation, her solicitors having withdrawn as recently as 22 December 2001.  Secondly, her application made reference to certain difficulties with documents (which appears to have been the possibility that the Respondent may have supplied documents to her solicitors which she had not received).  Nothing in the request for a postponement indicates that she has not been provided by her former solicitors with her papers or with the bundle for the Tribunal hearing.

21	On the same date, 4 January 2002, the request was passed through to a Tribunal Chairman for consideration.  The Tribunal Chairman dismissed the request for a postponement for reasons shortly expressed and contained in a letter dated 4 January 2002.  No appeal has been brought against the decision of the Employment Tribunal Chairman made on 4 January 2002 and we need say nothing further about it.

22	It appears that on the morning of the hearing before the Employment Tribunal Dr Valkova attended with a representative.  That representative appears to have been a member of the staff of the Disability Rights Commission (a Mr Font) who agreed to assist Dr Valkova in a personal capacity and only for the purpose of making an oral presentation of an application for a postponement.  Unfortunately, there is no evidence before us from that individual, nor from Dr Valkova, nor from her daughter who was also present, as to the terms in which the application for postponement/adjournment was made.

23	As will be apparent from the circumstances, there was no written request for an adjournment/postponement and we were unable to be assisted as to what had happened at the Tribunal by Mr Pullen, who appeared for Dr Valkova on the appeal before us, because he did not appear at the Tribunal below.  The Appellant did not apply to the Employment Appeal Tribunal for a direction that the Chairman deliver his notes of the request for the adjournment and, accordingly, there is what can only be described as a paucity of information before us as to the circumstances in which the application was made and the grounds upon which it was developed.

24	Waiving any legal professional privilege that might apply, Mr Pullen told us on instructions something of the nature of the advice which had been received by Dr Valkova’s former solicitors from Counsel in order to demonstrate that that advice did not go to the merits on the question as to whether or not she was a person with a disability.  We did not see the advice of Counsel, nor the letter by which her solicitors notified Dr Valkova that she would no longer be acting for them.

25	In his oral submissions in response to this aspect of the appeal, Mr Coppel for the Respondent was able to fill in the factual picture a little more fully.  He was able to read to us from the detailed notes taken at the hearing by his instructing solicitor and by his pupil who also appears to have been in attendance.  It is quite plain from that material that the thrust of the submission for an adjournment/postponement was that the Applicant would be at a disadvantage in presenting her case in the absence of legal representation.

26	From the terms of the Notice of Appeal and the Skeleton Argument submitted to us in support of it, it initially appeared that the application for an adjournment may well have had a second limb, i.e. that Dr Valkova had been unable to arrange for her medical experts to attend at the Tribunal hearing and had been surprised to find that the Respondent’s medical expert had attended in person.  In the event there is no material before us which suggests that the application for an adjournment was framed by reference to that matter or anything akin to it.  Indeed, it is a little difficult to accept that Dr Valkova will not have thought, with her solicitors, in advance of the hearing of the necessity of pre-warning her own expert witnesses to attend and/or would have been surprised by the fact that the Respondent’s expert witness would attend personally to give evidence.

27	We are therefore treating the application made to the Tribunal for a postponement as being purely on the basis that the Applicant had recently lost the advantage of legal representation and was seeking a further opportunity to obtain a legal representative.  In support of the application and the appeal before us, the obvious point is taken that the Respondents is a significant government department represented by solicitors and Counsel.  There was, it is suggested, as evident “inequality in arms”.

28	This is the sort of application that, sadly, Employment Tribunals have to deal with frequently.  Often an Applicant will claim a disadvantage by virtue of the fact that they are not legally represented and will seek an adjournment or postponement in order to explore the opportunity of obtaining further legal representation.  In considering such an application an Employment Tribunal obviously looks, as we infer this Tribunal looked, at the history of the proceedings, any potential prejudice to the Respondent and, of course, the question of prejudice to the Applicant.

29	A particular feature of this case, of course, was that the Tribunal had been convened to hear an Originating Application made in March 1997 which referred to a period of employment terminated in December 1996.  The issue before the Employment Tribunal was to be whether the Applicant had been a disabled person in 1995/1996.  It is also a noticeable element in the history of the matter that a similar application for a postponement/adjournment had been made in March 1999 to the Employment Tribunal then seised of the matter, again on the basis that Dr Valkova had relatively recently seen the withdrawal of her legal advisers.

30	In the event, the Employment Tribunal rejected the application for the postponement and the representative who had made that application on Dr Valkova’s behalf then withdrew.  In their Extended Reasons, the Employment Tribunal faithfully record the fact that the Applicant did apply for such a postponement and that they heard argument as to the merits of it from both sides.

31	It appears from the way in which the Tribunal’s Extended Reasons are framed, and the way in which the matter was noted by those taking notes on the Respondent’s side, that Mr Font (Dr Valkova’s then representative) had indicated initially that the Applicant had no idea at all why her solicitors had withdrawn their assistance in late December 2001.  In the event it appears that shortly thereafter it was disclosed to the Tribunal that full written reasons for that course of conduct by her solicitors had been given to Dr Valkova and indeed it appears that the letter in question was passed up to the Tribunal to read although it was not disclosed (without objection) to the Respondents.

32	The Tribunal record at paragraph 3 of their Extended Reasons that from that material it became clear to them that the solicitors had not withdrawn simply because they were not prepared to act for the Applicant any longer but that they had withdrawn because “the terms of the Pro Bono agreement under which they had offered originally to represent the Applicant” did not provide for them to continue to act.

33	Whether, in the light of that material and given the background circumstances of this case, the Tribunal should or should not have adjourned/postponed the hearing of 7 January 2002, was a matter falling squarely within the exercise of their discretion.  We have no reason to believe that they did anything less than give the application full consideration and hear argument upon it from the representatives for both sides.  We cannot detect any error in the exercise of that discretion in the circumstances of this particular case.

34	It is not for us to determine whether we would or would not have granted the postponement.  The question for us is whether it is established by the Appellant that the Tribunal acted outwith the terms of their broad discretion or in some way misdirected themselves.  We can glean no such misdirection from the terms of the Extended Reasons, nor from the circumstances in which the application was made.

35	Mr Pullen criticises the Extended Reasons of the Employment Tribunal on the basis that they do not give sufficient particulars of the reasons for the refusal of the application to adjourn.  However, it was not suggested by him that the Tribunal was particularly asked to record and reproduce the reasons for the refusal of the adjournment when that refusal was announced.

36	The Tribunal faithfully go on to give ample reasons for their decision on the point of substance before them and we do not consider that their somewhat pithy expression of reasons in relation to the refusal of a postponement/adjournment in anyway vitiates or undermines their exercise of discretion to refuse that application.

37	It accordingly follows that we reject the first procedural ground of appeal.

(2)	Additional Evidence

38	The second of the procedural grounds of appeal asserts that the Employment Tribunal erred in law in excluding from consideration certain documents which would have been relevant to the question before them, i.e. the question whether Dr Valkova was or was not a person with a disability.

39	The documents upon which the Appellant relies have been reproduced in the bundle before us.  They are documents notifying decisions by the adjudicating medical authorities on the determination of claims for disablement benefits made by Dr Valkova.  These documents record the specific decisions made by the adjudicating medical authorities (i.e. doctors undertaking statutory functions on behalf of the statutory social security authorities).

40	By a letter dated 23 November 1998, for example, Dr Valkova was given notice of a decision that the adjudicating medical authority was satisfied that she had a prescribed disease known as “Writers Cramp” which had caused a loss of faculty.  That loss of faculty is described as “impaired function of right hand” and by reason of it an assessment of 6% disability is made from 14 October 1995 to 13 October 1999.

41	By another decision, also notified on 23 November 1998, the adjudicating medical authorities further decided that Dr Valkova also had the prescribed disease “Tenosynovitis” and that that had caused a loss of faculty which was also described as “impaired use of the right hand”.  The assessment in respect of that loss of faculty was of 18% disability assessed from 14 October 1995 to 13 October 1999.

42	The cumulative effect of these decisions was to assess the degree of disability at over 20%.

43	Finally, by a further letter dated 2 December 1999 life awards are made for disablement benefit in respect of the two prescribed diseases: A4 – Writers Cramp and A8 – Tenosynovitis; with a total aggregate disablement of 24%.

44	These documents were not before the Employment Tribunal.  We have been shown documents which were before them and which were of substantially less relevance and assistance.  These documents comprise the decisions of the Social Security Appeal Tribunal to the effect that Dr Valkova did indeed have the two prescribed diseases and had contracted those diseases from prescribed employment, i.e. her employment as a Medical Adviser with the Respondent.  That material did not assist the Tribunal in understanding what degree of disability the statutory adjudicating authorities were satisfied Dr Valkova had suffered by reason of the two prescribed diseases.

45	Mr Pullen urges upon us the proposition that those documents would have assisted the Employment Tribunal to determine whether or not Dr Valkova had or had not a physical impairment in 1995/1996, not least because the awards in question are expressed to take effect from October 1995 onwards.

46	For his part, Mr Coppel rejected the proposition that these documents would have been of much assistance to the Employment Tribunal.  As he rightly indicated, they simply recorded decisions of certain doctors without disclosing the basis of those decisions, i.e. whether they were based on examination and what those examinations found, or whether they were based on reports of other doctors, for example, general or specialist practitioners who were caring for Dr Valkova.

47	We are attracted, however, by the proposition that the Employment Tribunal may have derived some assistance from these documents had they been before them.  Although they are documents notifying decisions of different statutory authorities, applying different statutory rules, one can see the parallel between such concepts as “loss of faculty” and the description or definition of “disability” in section 1 of the Disability Discrimination Act 1995.

48	However, it is not sufficient for Dr Valkova to succeed in this aspect of her appeal for her to demonstrate that there exist some documents which might have assisted her before the Employment Tribunal but which were not considered by that Tribunal.  It is her task to demonstrate that the Tribunal erred in some respect in law in reaching the decision that it did on the material that it had or was invited to receive.

49	In making good his submissions in respect of this ground of appeal Mr Pullen invites us to make a number of assumptions.  First, that Dr Valkova had in her possession (or her daughter had in her possession) on the first day of the hearing before the Tribunal these particular documents.  Second, that Dr Valkova or her daughter (who by that stage was representing her, Mr Font having departed) had asked the Tribunal to consider the documents.  Third, that the Tribunal having entertained that application had rejected it unreasonably or unlawfully.

50	We have here to record, once again, the fact that Mr Pullen did not appear for Dr Valkova in the Tribunal below.  There is no evidence whatsoever before us as to the making of any application for the admission of these documents.  There is no evidence from Dr Valkova.  There is no evidence from her daughter.
51	In those circumstances, this limb of the appeal faces an obvious difficulty.  At our invitation Mr Coppel was asked to indicate what record, if any, the note-takers on the Respondent’s side had made of any such application at the Tribunal hearing.  Neither the notes of Mr Coppel’s pupil nor the notes of his instructing solicitor record any such application for the admission of documents being made.

52	Mr Coppel himself has no recollection of such an application being made.  As a result of a direction given by this Employment Appeal Tribunal, at a Preliminary Hearing, the Employment Tribunal Chairman was invited to comment as to why the evidence in relation to the Benefits Agency was not admitted.  By his reply, conscientiously complying with the direction of the Tribunal, the Employment Tribunal Chairman records that he has “no note and no specific recollection that an application was made to introduce” this further material.  His note indicates that he is perfectly willing to accept that such an application was made if others can recall it.  However, as we have already indicated, there is no evidence before us that any such application was made.  If it was made, then no doubt preliminary steps will have been taken before its making; for example, the copying and pagination of the relevant documents with a view to them being handed forward.  We were not shown any such paginated or reproduced copies.

53	In the event, therefore, this ground of appeal does not get past “first base”.  There is no material upon which this Employment Appeal Tribunal can be satisfied that the Tribunal erroneously refused an application to admit further documents because there is no evidence that any such application was actually made.  Accordingly, this ground of appeal must also be dismissed.

(3)	Misdirection

54	The first of the grounds of appeal challenging the substance of the Tribunal’s decision asserts that the Tribunal misdirected itself in law.  What is asserted is that the Employment Tribunal misdirected itself that in order for a disability to be established on the basis of physical impairment it was necessary for the Applicant to establish some clinically recognised condition, illness or ailment.  Just such an approach is taken by the statute in relation to mental impairment.  In a mental impairment case, by section 1 read with Schedule 1, it is necessary for the Applicant to be able to identify an established condition.  No such requirement exists in relation to physical impairment.

55	It is said by the Appellant that this Tribunal misdirected itself by believing that such a specific condition must be identified.  In support of that submission Mr Pullen takes us to paragraph 10.3 of the Extended Reasons.  That is a paragraph in which the Tribunal give their reasons for preferring the medical evidence given before them by Mr Semple to that contained in the reports of Dr Butler.  They write:

10.3	“As far as the medical evidence was concerned, we preferred the evidence of Mr Semple to that of Dr Butler.  We discounted Dr Butler’s diagnosis of diffuse RSI.  We accepted that, as Mr Semple said, it is not a clinically well-recognised condition in reputable text books.  It was not supported by clinical findings.”

56	From that wording Mr Pullen derives his proposition that the Tribunal misdirected itself in law to the extent that it was looking for and did not find a recognised clinical condition and by reason thereof it wrongly rejected Dr Valkova’s case.

57	That proposition does not withstand a moment’s scrutiny.  It is quite plain from the Employment Tribunal’s Extended Reasons, read as a whole, that they quite plainly had in mind the difference between the approach taken by the statute to medical impairment and that taken in dealing with physical impairment.  Not least, they reproduce the submissions made by Mr Coppel, who was appearing before them for the Respondent, to precisely that effect.  They do so in the following terms:

9.1	“He [Mr Coppel] accepted that the Applicant did not fit into a generally labelled condition, in other words it was not necessary for the Applicant to show that she suffered from a prescribed disease, for instance, or indeed a condition that was necessarily one that could be described by doctors.  The Act looks, he said, at the impairment and the effect and whether the impairment is something that objectively exists.”

58	Although the Tribunal’s Extended Reasons do not expressly say that they adopted that submission by Mr Coppel as a correct statement of the law, it is apparent from the terms in which their findings and conclusions are framed that they did indeed do so.  It is quite plain that, having weighed and considered the medical evidence, they turned discreetly to consider Dr Valkova’s own evidence of a physical impairment.  Immediately after paragraph 10.3, on which Mr Pullen relies, the following appears in paragraph 10.4:

10.4	“We accepted that, even apart from recognisable clinical conditions such as tenosynovitis, the complaints of an Applicant alone may be sufficient to permit an inference of impairment to be drawn in appropriate cases, even where a formal diagnosis of condition or disease is not possible.” [our emphasis]

59	In those circumstances, we entirely reject the proposition that this Tribunal misdirected itself in approaching the task before it.  It quite plainly considered that Dr Valkova was entitled to establish physical impairment either by reliance on medical opinion that she had a particular condition or by virtue simply of her own evidence of such physical impairment.  We are quite unable to detect the misdirection for which Mr Pullen contends.

60	In our judgment, his submissions turn on a misreading of paragraph 10.3.  In context it is quite plain that in that paragraph all the Tribunal were seeking to do was to express, in truncated form, their reasons for preferring the medical evidence of Mr Semple over that of Dr Butler.  Mr Semple had given direct oral evidence before the Tribunal developing his written report which had been disclosed.  Dr Butler, on the other hand, having prepared three written reports, had not appeared before the Tribunal and only two of his reports were before the Tribunal.  The Tribunal are simply indicating in paragraph 10.3 one of the features of the two contrasting medical expert’s reports that caused them to prefer one to the other.

61	In those circumstances we reject this third ground of appeal.  We should make it clear that, in doing so, we are making no finding on the question of whether “RSI”, be it ‘diffuse’ or otherwise, is a clinically-recognised condition.  Nor as to whether Mr Semple’s views on that question are persuasive.  In a footnote to his Skeleton Argument Mr Pullen drew attention to an assertion that the Court of Appeal had rejected Mr Semple’s opinion (in Alexander v Midland Bank [1999] IRLR 723) on the point.  We declined Mr Pullen’s invitation to travel further into this question.  In our judgment, nothing in that material would assist us in determining the appeal in this case.

(4)	The Applicant’s Credibility

62	The Tribunal having rejected, in circumstances and in terms which we consider unimpeachable, the medical basis upon which the Applicant pursued her claim, what was left for them to determine was, on the basis of her non-medical evidence, whether the Applicant had established that she suffered from a physical impairment in 1995/1996.

63	For that purpose, at the Applicant’s invitation, they were relying primarily on her written and oral evidence.  It was the crucial task of the Employment Tribunal to evaluate that evidence.  As we have already recorded, the evidence given to the Tribunal by Dr Valkova was that she had indeed suffered a physical impairment of her right hand and arm in 1995/1996, not least to the extent that it had prevented her from being able to undertake her ordinary work which involved writing.  A number of other indicia of everyday impairment of her functioning were given in the course of her evidence to the Tribunal.  The crucial question, therefore, was whether her evidence was good evidence or non-credible evidence.

64	That matter having fallen for determination by the Employment Tribunal, they addressed it.  At paragraph 9.4 they record submissions of Mr Coppel critical of the Applicant’s evidence and matters upon which Mr Coppel suggested her credibility should be assessed.  The Tribunal themselves record their conclusion as follows:

10.2	“In our judgment, the Applicant’s evidence was open to serious doubt, especially with regard to four matters, the wearing of the splint, the evidence that there were no right hand or arm problems prior to mid-August 1995, the evidence about driving a car and the differing accounts she gave with regard to the position of Charles Russell [Solicitors] at the start of the hearing.  All those matters caused us to have serious reservations as to the accuracy of the Applicant’s evidence about her condition.”

65	It is immediately clear therefore that the Tribunal were not satisfied as to the Applicant’s evidence.  It is important to look carefully at their Extended Reasons.  In the paragraph just extracted they state, firstly, their general finding that the Applicant’s evidence was open to serious doubt.  The four matters particularly mentioned are indicia of that overall finding and are not necessarily the full extent of it.

66	However, Mr Pullen contends that the Tribunal were wrong to rely on all or any of those matters as going to the Applicant’s credibility as there were innocent explanations in relation to each of the matters.  In order to understand those submissions it is necessary to say a little more about each of the four specific matters mentioned by the Tribunal.

67	First, the “wearing of the splint”.  It was Dr Valkova’s evidence that the weakness in her right arm and hand was such that she wore, for most of the time, a splint.  The evidence of Mr Semple, given in writing and orally before the Employment Tribunal, was that on examination the condition of Dr Valkova’s hand and arm was not suggestive of the fact that she wore, with any regularity, a splint.  His evidence was based on an examination of skin colour and texture.  He spelt out in his report the reasons for his conclusions.

68	Mr Pullen urges that the Tribunal were wrong to take this into account as going to the Applicant’s credibility for two reasons.  First, it was undisputed that the splint in question was “well-worn” in appearance.  Second, he submits that Dr Valkova’s daughter who was present at the Tribunal and was representing her was able to give evidence directly as to whether Dr Valkova had or had not been wearing the splint.

69	In our judgment there is nothing in this point.  There was no application by Dr Valkova’s daughter for her to give any evidence.  It had been clear to Dr Valkova since no later than disclosure of his report in mid-November 2001 that Mr Semple was making a clear assertion as to the non-wearing of a splint.  She had ample opportunity to herself supply, or to supply through her solicitor’s, evidence or material which would gain say that proposition.  There was no such material.  It does not appear that Dr Valkova even asked the Tribunal to hear her daughter’s evidence.

70	In those circumstances we cannot detect any error by the Tribunal in not itself inviting or eliciting evidence from Dr Valkova’s daughter.  The question of the state and condition of the splint itself does not take the issue any further.  The simple fact of the matter is that the Tribunal had before it, on the one hand, the evidence of Dr Valkova that she did wear a splint and, on the other, the evidence of Mr Semple that in his judgment - on examination of Dr Valkova’s arm and hand - that her account was unlikely to be correct.  It was for them to assess the evidence and determine which they preferred.  Having found that they accepted Mr Semple’s evidence, it is clear that this is an issue which they were entitled to take into account when determining the credibility of Dr Valkova’s evidence.

71	The second matter relates to the question of “hand or arm problems prior to mid-August 1995”.  The thrust of Dr Valkova’s evidence was that the problems she experienced with her right hand and/or right arm had developed as a result of the excessive requirement for writing involved in her job as Medical Adviser with the Respondent from spring 1995 onwards.

72	The Tribunal were satisfied, on their review of the medical records, that problems with the right hand had been a feature of Dr Valkova’s medical history back beyond spring 1995.  Not least they refer to the terms in which she completed the application form for appointment (which we have mentioned above) and they recite earlier entries in her medical records.  They found, on the material which was before them, an inconsistency between the account Dr Valkova gave and the medical records.  This point had likewise been picked up by Mr Semple in his report and oral evidence.  Again, it was for the Tribunal to assess this material and determine the extent to which they found it of assistance in ascertaining the credibility of Dr Valkova’s evidence.  We can find no error of law in that approach or in their conclusion on the point.

73	The third matter going to credibility related to “driving a car”.  Dr Valkova has, it seems, had for some time a manual transmission motor car and drives it.  An aspect of the physical impairment of her right hand was asserted to be an inability to grip and a loss of function in the right arm.  Therefore, her ability to drive a car might have been thought to be material.  In answer to questions from her own medical expert (recorded in his reports) and from the Tribunal, Dr Valkova confirmed that she did indeed drive a car.  Mr Semple, however, records that in the course of his interview with and examination of Dr Valkova she was evasive on the question of the extent to which she drove a motor vehicle and the frequency with which she drove.  He concluded from this evasiveness that her alleged physical impairment was not of the nature for which she contended, because if it was as she suggested, she would not drive a vehicle.  She had, he felt, been reticent about disclosing to him the fact that she did drive and the frequency with which she drove.

74	Again, this was material which was all canvassed before the Employment Tribunal.  They are the judges of fact.  They are the “industrial jury”.  They were perfectly entitled, if they chose to do so (and they did), to look at the account given by Dr Valkova to them (and to Dr Butler) and to contrast it with what they accept occurred with Mr Semple.  They were entitled to take the view that this went to the credibility of the Applicant’s evidence.  Again, we can detect no error of approach here.

75	Finally, there is criticism of the Tribunal for relying on “differing accounts” given by Dr Valkova as to the circumstances in which she lost the services of her solicitors in December 2001.  As we have already indicated, this area was travelled over by the Tribunal in considering the application to adjourn or postpone the hearing.  It does appear that there was some inconsistency between the initial account given by Dr Valkova’s representative (Mr Font) to the Tribunal (that she did not know why she no longer had the assistance of solicitors) with what later emerged (i.e. that there was a full letter giving reasons which was provided to the Tribunal).

76	We do not consider this a matter of great significance but we have only the faintest picture of how this issue developed or was canvassed before the Tribunal.  They were seised of that fuller picture to an extent that we cannot be.  We cannot say that they were wrong to make the assessment that they did and to take it into account in dealing with Dr Valkova’s credibility.  The assessment of evidence was a matter for them.  As Mr Pullen candidly admitted, even if he were able to establish this particular alleged “flaw” in the Tribunal’s handling of the matter, it would not be determinative either of this ground of appeal or of the appeal as a whole.

77	In those circumstances, we have no hesitation in rejecting this fourth ground of appeal.  It seems to us that the Tribunal were charged with the function of assessing the credibility of the Applicant’s evidence and they did so.  They found against her for reasons which they gave.

Conclusion

78	For the reasons we have given in this judgment, we are not satisfied that any of the four grounds of appeal canvassed before us are made out.  In those circumstances this appeal is dismissed and the finding of the Employment Tribunal on the preliminary issue is upheld.