Appeal No. EAT/1142/02 & EAT/1143/02 DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 September 2003

Before
HIS HONOUR JUDGE D SEROTA QC
PROFESSOR P D WICKENS OBE
MS P TATLOW

MR J T W CHEASTY	APPELLANT

HM PRISON SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised 5 November 2003

	APPEARANCES

For the Appellant	MR PETER WARD
(of Counsel)
Instructed by:
Messrs Levenes Solicitors
Ashley House
235-239 High Road
Wood Green
London N22 8HF	
For the Respondent	MR PAUL GOTT
(of Counsel)
Instructed by:
The Treasury Solicitor
Queen Anne's Chambers
28 Broadway
London SW1H 9JS	

HIS HONOUR JUDGE D SEROTA QC

1	This is an appeal against a decision of the Employment Tribunal at London (Central).  The Extended Reasons were sent out to the parties on 30 September 2002.  The hearing was a Preliminary Hearing to determine whether at the material time, that is the date when the first alleged act of discrimination took place, the Applicant was disabled within the meaning of the Disability Discrimination Act 1995.

2	The Respondent cross-appeals, firstly seeking to uphold the decision of the Employment Tribunal on a different ground and that is on the basis that the Employment Tribunal should have held that writing a report on life prisoners was not “a day-to-day activity” and secondly there is a cross-appeal against an order made by the Tribunal that the Respondent should pay £750 in costs by reason of its unreasonable conduct of the litigation.  A review was sought in respect of this matter, which was refused, and the Respondent now appeals.  Both appeals were referred by His Honour Judge Altman on 4 December to preliminary hearings on 9 May Judge Prophet ordered full hearing on both appeals and Mr Justice Burton on 24 June made an order in relation to the cross-appeal relating to writing reports.

3	Mr Cheasty is a Forensic Psychologist, we understand of Irish extraction.  He is white and will be 52 in November.  He is still in the employment of the Respondent and currently works at Feltham YPS.  He joined the Prison Service in June 1998 and on 6 December 1999, after having written (and there is no suggestion of impropriety to be taken from what we say) a critical report on a black colleague, a Ms Angela Herbert-Richards, she called him “white trash”.  By coincidence on the same day he received a disciplinary notice alleging that he was guilty of racist behaviour.  He claims to have been seriously shocked and was off work for some 5 weeks, certified by his doctor, suffering from anxiety and depression.
4	In March 2000 Ms Herbert-Richards presented a complaint to the Employment Tribunal of discrimination on the grounds of race against Mr Cheasty which was dismissed.

5	On 3 November 2000 he was absent from work for 6 weeks because of what is described as “back ache” and received the appropriate certificate from his doctor.

6	Mrs Cheasty was pregnant in the spring of 2001 and Mr Cheasty had time off which was not work-related and after his child was born on 22 June he applied for and was granted paternity leave to 17 July.  He returned to work on 17 July, but on 17 July he was certificated sick due to stress.  He returned to work on 19 August where he was transferred to a different wing of the prison where prisoners serving life sentences, known colloquially as “lifers” were held.  He had the responsibility of interviewing them and preparing psychological reports which he found extremely difficult and a task which should have taken him a week was taking him many times that.

7	On 2 November he again was certificated sick for a 13-week period suffering from anxiety and depression.

8	At some point in time, we do not know when but it must have been in the latter part of 2001, he made an application against the Prison Service seeking compensation on the grounds of discrimination on the basis of his ethnic origin.  The hearing was to start in January and there was to be a 5-day hearing.

9	On the first day of that hearing his Counsel indicated that the claim which had been presented on the basis of discrimination on the grounds of his Irish nationality would not be pursued but the claim was to be pursued on a different basis if permission to amend were given; that is, the grounds of his race.  We know very little about this matter.  The Employment Tribunal declined to allow the amendment.  As a result Mr Cheasty withdrew his application.  The only relevance to us, as it seems, of this matter is that a number of documents from his personnel file and a number of witness statements were apparently prepared and placed in the bundle for the hearing which, in the event, did not take place.

10	On 17 December Mr Cheasty had presented his IT1 in which he alleged discrimination on the grounds of his disability, victimisation and harassment.  It is perhaps pertinent to note two things from this document.  The first point to note is that the first act of discrimination is said to have taken place in August 2001 when he was required to prepare reports on lifers and, secondly, that his disability accrued in the middle of July.

11	During the course of the proceedings in the Employment Tribunal Mr Cheasty was interviewed by Dr Jacobson who was a Single Expert appointed by both parties and he prepared a report which is dated 23 May 2002.  We need to look briefly at that report which we have in our bundle:

55	“From about July 2001 onwards, he has had a recognised psychiatric disorder.
…
60	It is my view that the moderate depressive episode of December 99 – January 2000 probably impaired his ability to concentrate and therefore certain aspects of memory, but only briefly.  With regard to 2001, if the Court finds evidence that it is true that Mr Cheasty’s work performance was reduced in quality or output, then what caused it?  On the balance of probabilities, it was increasing stress and anxiety, leading up to going off work on 9.7.01, and on the balance of probabilities, this increasing anxiety and stress while at work would have impaired his concentration, and thereby secondarily his memory to some extent.  Was that extent substantial?  It is my view that it was substantial as defined in the guidelines in the DDA, in terms of meaning more than minor, and leading to prolongation of time required to carry out the activity of writing Lifer Board reports, but it probably did not significantly affect day-to-day activities at home.
…
64	I have been asked to consider the cumulative effect of the disability.  The cumulative effect of his perceived difficulties has contributed to his current psychiatric distress, but I do not think that there is a cumulative effect with regard to the impairment of concentration and memory.
65	I have been asked to consider whether the impairment is long term, i.e. it has, or is likely to last at least 12 months at the relevant date.  Mr Cheasty was impaired from about December 1999 to January 2000.  Mr Cheasty was then impaired probably from about June 2001, through to the present, which is almost one year.
…
67	I am aware that Mr Cheasty does not like psychotropic medication and fears dependence on it, but he did take antidepressants in December 1999 with benefit.  Although he perceived continuing work difficulties and reported continuing distress, he did not have a recognised psychiatric disorder in 2000 and probably not for several months into 2001.  Had he received psychiatric medication when the GP gave him a certificate to be off work in July 2001, on the balance of probabilities his symptoms would have diminished, and he would have been able to return to work and function better, and on the balance of probabilities, while on antidepressant medication, his concentration and memory would have been the better, allowing a better work performance, and removing him from the level of disability within the meaning of the DDA 1995.
…
69	Were he to accept cognitive behaviour therapy immediately, he would improve within 8 weeks, and would be capable of any form of work for which he was trained.  He might feel anxious returning to Wormwood Scrubs because of the history of perceived work difficulties there.  It should be recognised that his current psychiatric state has a good outcome, with appropriate treatment, and a particularly good outcome were he to return to a supportive work setting.”

12	We need to explain, before we turn to deal with the findings of the Employment Tribunal, with the issues that gave rise to the award of costs.  On 31 July in preparation for the hearing which, as we have said, was a Preliminary Hearing to determine if the Applicant was disabled, the Treasury Solicitor, at the material time represented by Mr O’ Reilly, sent a bundle of documents containing some 91 pages and 6 witness statements to the Applicant’s solicitors.  He did so under cover of a letter of 31 July.

13	This letter was responded to by the Applicant’s solicitors who asked the Treasury Solicitor to explain the relevance of the documentation and witness statements before they incurred the additional costs of considering them and instructing Counsel to do the same.  They state that:

“We hereby place you on notice that we shall be raising objections to the relevance of the documentation and the witness statements served unless you are able to fully explain their relevance.  At the same time we shall be seeking to recover the costs of having to consider this further information from your Client.”

14	The Treasury Solicitor wrote a letter on 2 August which perhaps on reflection Mr O’Reilly might consider to have been somewhat ill-judged, in which he said:

“The statements and documents which I have served deal with wider matters than those which will be before the Tribunal on 15 August.  However, I am not prepared to limit the consideration which I will give to such statements and documents when I prepare for that hearing.”

15	We understand that he was to take some leave and when he came back from leave he did attempt to contact the Applicant’s solicitor and then later the Applicant’s Counsel; but no doubt because of the time of the year he was not able to make contact and as he had hoped attempt to agree the relevant issues.

16	We now turn to consider the findings made by the Employment Tribunal.

17	The Employment Tribunal, as it seems to us, accurately set out the relevant passages from the Disability Discrimination Act 1995.  It clearly had in mind section 1 and the relevant parts of Schedule 1.  It also paid attention to the statutory guidance which deals with the meaning of the term “substantial” which appears in the legislation.  We shall come to this shortly.  It also refers to the guidance in relation in particular to activities such as loss of memory.

18	The Employment Tribunal, having considered the evidence, came to the conclusion following what Dr Jacobson had said, that between December 1999 and January 2000 Mr Cheasty suffered a moderate depressive episode.  However, it found that he seemed to have overcome that depression after a period of about one month and by March 2000 he had been completely vindicated by the dismissal of Ms Herbert-Richards’ claim.

19	It then went on to find that Dr Jacobson dates the onset of the second bout of psychiatric order from about June 2001.  We interpolate here that in the passage we have read he also refers to it as having started in about July 2001 and in another passage which we need not quote he referred to it as starting in the first few months of 2001.  The Employment Tribunal concluded:

18	“…it really began sometime after 17 July 2001 when Mr Cheasty was due to return to work following the birth of his second child and a period of paternity/annual leave.”

20	The Employment Tribunal then, correctly, directed itself that the first act of discrimination took place after 20 August and that was the date on which the question of whether he was a disabled person should be asked.  The Employment Tribunal came to the conclusion, in view of the gap of some 18 months between his initial bout of depression and the depressive illness that it found began in July 2001, that the earlier episode was to be disregarded; and thus July/August was the date from which the 12-month period was to run.  It noted that the two medical reports it had from Dr Solkar and the expert, Dr Jacobson, were optimistic about Mr Cheasty’s prospect of recovery.

21	Dr Jacobson’s view which we have already read out was that within a relatively short period of treatment Mr Cheasty would be capable of any form of work for which he was trained and indeed the Employment Tribunal noted that Mr Cheasty was now back at work in a different environment and performing satisfactorily.  The Tribunal then says this:

18	“We therefore take the view that if the question of disability were put to an objective and informed observer in July/August 2001, as to whether it was likely that Mr Cheasty’s mental impairment was likely to last for more than 12 months, we conclude the answer, based on the medical and other evidence now before us, would be ‘no’.”

22	The Employment Tribunal then went on to consider whether, if it was wrong as to the length of his disability, whether he could show sufficient “substantialness” of the adverse affect on his ability to perform day-to-day activities.  In paragraph 19 the Employment Tribunal had this to say:

19	“Apart from forgetfulness as to matters of shopping, mislaying his keys and leaving doors open, there was nothing in the evidence to indicate that in the home environment Mr Cheasty had any problems beyond the minor or trivial in terms of his ability to carry out day-to-day activities.”

23	The Employment Tribunal then reminded itself of what was said in the case of Cruickshank v VAW Motorcast Ltd [2002] IRLR 24:

“The Tribunal should consider whether the impairment has a substantial and long term adverse effect on the employee’s ability to perform normal day to day activities both while actually at work and while not at work.  ‘Normal day to day activities’ are only a yardstick for deciding whether an impairment is serious enough to qualify for protection under the Act.  In assessing whether a disability has a substantial and long term effect on the ability to do everyday tasks, it is not appropriate to confine the evaluation to the extent to which the Applicant’s symptoms are such as to have a significant and long term effect on his ability to perform day to day tasks, such symptoms are not to be ignored simply because the work itself may be specialised and unusual, so long as the disability and its consequences can be measured in terms of the ability of an Applicant to undertake day to day tasks…in order to determine that if the impairment amounts to a disability the Tribunal shall ask whether there was a substantial and long term adverse effect while the employee was still in employment.”

24	The Employment Tribunal then went on to consider whether Mr Cheasty’s behaviour was such in that he satisfied the requirement in relation to his working activities.  The Tribunal had this to say:

20	“He has told us that he has difficulty in completing the lifer report which require him to interview prisoners who are themselves difficult and possibly dangerous individuals, preparing a written report and making recommendations which can have a serious impact on the prisoner and on society as a whole.  We had no evidence that the other more mundane tasks undertaken by Mr Cheasty caused him difficulty, but this “specialist and highly sophisticated activity of writing lifer reports seemed to be the main issue of concern to Mr Cheasty…From the evidence before us we found no other examples of such an inability to undertake day to day tasks at work, as to come within the requirements of the Act.”

25	The Employment Tribunal then directed itself by reference to the decision of the Employment Tribunal in the case of Kapadia v London Borough of Lambeth [2000] IRLR 14, that “…the Tribunal should not ignore the uncontested medical opinion evidence put before it.”  We would interpolate unless they have good reason to do so.  The Employment Tribunal said

21	“We do not ignore that evidence but looking carefully at Dr Jacobson’s report, we find his opinion is hedged round with qualifications and reservations to Mr Cheasty’s mental condition.”

26	The Employment Tribunal go on to quote from Dr Jacobson’s report and Dr Jacobson’s conclusion.  The Employment Tribunal found:

21	“Those observations seemed to us to be less than confident in Dr Jacobson’s conclusion as to whether or not Mr Cheasty comes within the definition of section 1 DDA.  Dr Jacobson asks the question – if the reduction in work performance was not due to the depressive illness, what was the reason for it?  As regards the episode in 1999/2000, it seems clear that there is a correlation between the onset of that episode and the consequences of the complaint of racism made against Mr Cheasty by Ms Herbert-Richards.  As to the absence from work from June 2001 onwards, we note that Mr Cheasty’s wife has had another child, that he felt pressured by the demands made of him by the Prison Service to complete the lifer reports, plus the change in his office environment all contributed to his state of mind.  For these reasons, while respecting the conclusions reached by Dr Jacobson, we consider on the balance of probabilities, taking into account all the evidence which has been put before us today, and having heard the detailed submissions of the representatives of both parties, that on balance Mr Cheasty’s condition was not such as to constitute a substantial and long term adverse effect in his employment.  He is therefore not a disabled person within the meaning of section 1 DDA.”

27	The Employment Tribunal therefore came to the conclusion that Mr Cheasty had not demonstrated that he was disabled within the meaning of the Act on two grounds.  Firstly, his disability was not long term and, secondly, it did not have the substantial adverse effect on his day-to-day activities that was required.

28	The Employment Tribunal, finally, went on to deal with the issue of costs and it came to the conclusion that although its members had in fact used and read as relevant some 91 pages of documents and 3 of the witness statements, the refusal of Mr O’Reilly to explain their relevance was unreasonable and taking a broad-brush approach it came to the conclusion that two hours of solicitors’ time, which was costed at £500, and two hours of Counsel’s time costed at £250, had been wasted and accordingly, applying a broad-brush approach, it awarded the sum of £750 by way of costs.

29	It is quite clear that the approach it took was a broad-brush approach and it is also clear that the Tribunal was shown some schedule of costs which showed that the total cost of considering the documents and witness statements was something like £2,000; but this document never appears to have got to the Treasury Solicitor.  It is possible that he glanced at it but he was never supplied with a copy.

30	We now turn to look at the Notice of Appeal.  The Notice of Appeal is based on the premise that the Employment Tribunal misunderstood the law or misapplied or misinterpreted the law in determining that Mr Cheasty was not disabled.  Firstly, the Employment Tribunal found the psychological disorder began in July whereas Mr Jacobson said it had begun in June 2001.  Secondly, the Employment Tribunal failed to take account of the fact that it had lasted for 12 months or more.  Thirdly, there was no evidence to support the finding that in July or August 2001 and informed bystander would conclude that his condition was not such as to constitute substantial and long term adverse effect of his illness.  Fourthly, in applying the test of what an informed and objective observer would conclude, the Employment Tribunal applied the wrong test.  Fifthly, in determining whether there was mental impairment which was not substantial the Employment Tribunal failed to take account of the decision in Cruickshank.  Sixthly, in deciding that the mental impairment was not substantial the Employment Tribunal failed to take account of the views of Dr Jacobson.  A similar point is made in Ground 7 and in Ground 8 it is asserted that in deciding that the mental impairment was not substantial the Employment Tribunal ignored the decision in the case of Kapadia, which we shall come to.

31	It is now, I think, helpful to set out very briefly the relevant law.  Section 1 of the Act provides that

1	(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.”

A disabled person is defined in sub-section 2 as “a person who has a disability”.

32	It is also right to draw attention to section 6 (6) of the Act which relates to an employer’s duty to make adjustments, which provides that:

6	(6)	“Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know –
(a)	in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or
(b)	in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).”

33	We also need to refer to the first Schedule of the Act which defines “mental impairment”: see paragraph 1.  It defines “long-term effects”: see paragraph 2:

2	(1)	“The effect of an impairment is a long-term effect if –
		(a)	it has lasted at least 12 months;
		(b)	the period for which it lasts is likely to be at least 12 months;
…
(2)	Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.”

34	We also refer to the guidance given that was issued by the Secretary of State in July 1996.  We draw attention to A11-13 which deal with the effect of treatment.  We draw attention to the meaning attributed to normal day-to-day activities in part C and in particular we have regard to C2 and C3; and also to C20.

35	Our attention has been drawn to a number of authorities which are relevant.  We have referred to the case of Kapadia, a decision of the Employment Appeal Tribunal, which related to a case where a majority of an Employment Tribunal had failed to accept the views set out in an agreed medical report.  The Employment Appeal Tribunal had this to say:

24	“We do not preclude the possibility that a Tribunal may, for good reason, reject uncontradicted medical evidence.  However that is not what happened here.  The majority simply disregarded the medical evidence.  That, in our view, is wholly impermissible.”

36	Our attention was also drawn to the case of Cruickshank v VAW Motorcast Ltd.  In that case Mr Cruickshank worked in a foundry and he developed occupational asthma as a result of being subjected to fumes in his workplace.  It was submitted that as he only had these particular difficulties at work his disability could not be regarded as substantial because it happened at work and not in the home.  We draw attention to paragraph 25 of that decision:

“25	It seems to us that a claim against an employer for breach of duty under these sections must involve an examination of the actions of the employer towards the employee at the time.  The person must be shown to be disabled.  To make sense of this process must of necessity mean looking at the disabled person at the time of the actions complained of.  Section 1 is simply a definition section that provides the meaning to attach to disability where it arises in the many parts of the Act.  The fact that it uses the present tense does not alter the meaning of ss.4 and 5, but rather it provides the meaning of the word to be applied in the context of those sections.  What is being asked is whether 'an employer discriminates against a disabled person ...'  To answer that question requires an examination of how the employer treated the employee as he was at that time.  Was he then disabled as defined in s.l ?  This is confirmed, on an examination of other provisions of the Act.  For instance, in s.6, which imposes on an employer an obligation to make reasonable adjustments, subsection 6 provides: 
'Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know- ... 
(b)	...that that person has a disability.'
That which requires examination is that which was, or should have been, in the mind of the employer at the time, and that must require an examination of whether there was a disability at that time. Indeed, in s.l itself, subsection (4) provides: 
'... the question whether a person had a disability at a particular time ("the relevant time") shall be deter- mined, for the purposes of this section, as if the provisions of, or made under, this Act in force when the act complained of was done had been in force at the relevant time.' 
Here again the Act seems to require any examination of whether there was a disability, to involve examination of the employee's impairment at the time of the act complained of, in this case the dismissal. 
…
28	(c)	'Normal day-to-day activities' in s.l are included, it seems us, as a way of deciding whether the impairment is serious enough to qualify for protection under the Act.  They are there as a yardstick, but only as a yardstick.  It follows that in assessing whether a disability has a significant and long-term effect on the ability to do everyday tasks, it is not appropriate to confine the evaluation to the extent to which the applicant is disabled only in a ‘normal day-to-day’ environment.  In this case when the appellant is away from work he can obviously accomplish most everyday tasks, on the findings of the employment tribunal.  But the position of the ‘everyday tasks’ test is as a measure of seriousness, it is not dictating the actual environment in the particular case in which such symptoms are to be judged.  Accordingly if, whilst at work, an applicant’s symptoms are such as to have a significant and long-term effect on his ability to perform day-to-day tasks, such symptoms are not to be ignored simply because the work itself may be specialised and unusual, so long as the disability and its consequences can be measured in terms of the ability of an applicant to undertake day-to-day tasks.  The Act is not restricted to the period when people who are only doing day-to-day activities; those activities are rather a ‘barometer’ or test of the degree of severity of the impairment.”

37	Our attention was also drawn to the decision in the Scottish Employment Appeal Tribunal of Law of Law Hospital NHS Trust v Rush [2001] IRLR 611, a decision of the Court of Session in Scotland.  We refer to paragraph 17:

17	“The particular duties performed by an employee in the course of his or her work cannot, of course, be equated with normal day-to-day activities.  Each case will depend on its own circumstances but the work performed by an employee may well include some normal day-to-day activities.”

38	The Skeleton Argument, and indeed the submissions that we have heard today based on the Skeleton Argument, have been criticised by the Respondent for, in effect, raising an issue of perversity that is not raised in the grounds of appeal.  We have heard full argument on the matters raised and we decline to decide whether the Skeleton Argument and submissions have gone outside the Notice of Appeal.  Mr Ward in fact has said that they do not; and it seems to us that it is more appropriate to deal with matters of substance, rather than points as to the true nature of the appeal.

39	Mr Ward in his submissions has essentially made separate submissions: firstly, in relation to the finding of the Tribunal that there was no long-term disability and, secondly, in relation to the substantiality of the adverse effect upon Mr Cheasty’s ability to perform day-to-day activities caused by his depressive illness.

40	It is submitted, firstly, that the Employment Tribunal capriciously ignored the earlier bout of depressive illness.  That is described as being both wrong in law and “offensive to logic”.  The Employment Tribunal should have asked itself whether Mr Cheasty was disabled as at August 2001 and if the Employment Tribunal had asked that question it would have found that the illness had already lasted for 12 months.  If an illness, it is submitted, is likely to recur then it is to be treated as continuing to have that effect and it was submitted that the effect of the statutory guidance was that the entire period of disability needed to be considered including the time prior to the first act of discrimination and thereafter.

41	The finding that the period of disability began sometime after 17 July is described as being perverse and it is submitted that the Employment Tribunal arbitrarily substituted its views for those of Dr Jacobson, contrary to the guidance given in the case of Kapadia.  It is also said that the Employment Tribunal should not have taken account of the fact that Dr Jacobson said the Applicant could return to work after a short period of treatment.  He submitted that the paragraph 6.1 of the Schedule to the Act (which we have read) requires that medical treatment should be disregarded in determining if a person is disabled.

42	Mr Gott submitted that in this particular case the evidence which the Employment Tribunal was entitled to have regard to was that there had been a short period of depressive illness between December 1999 and January 2000.  The Employment Tribunal was satisfied that it had ceased then.  There was no suggestion in Dr Jacobson’s report that the depression was likely to recur and there is certainly no finding that it was likely to recur.

43	In those circumstances, it is submitted by Mr Gott that the Employment Tribunal’s finding of fact as to the date when the depressive illness arose is unassailable.  He drew attention to the fact that Mr Cheasty, when he had sought paternity leave, did not suggest he was sick and he asked for paternity leave, not sick leave.  The date given in the IT1 for the commencement of the illness is a date in July 2001.

44	The question of whether a condition is substantial for the purposes of the Act is essentially one of fact; and the Employment Tribunal was perfectly entitled to come to the conclusion, it did both in relation to substantiality (which we will come to shortly) and also in relation to the dates between which Mr Cheasty suffered from a depressive illness.  The findings of fact were justified by the evidence it chose to accept.

45	What is submitted in relation to the question of the Employment Tribunal having ignored the effect of the medical treatment is that the Schedule refers to medical treatment that is in fact being undertaken.  Clearly, in cases for example where someone suffers from diabetes and takes insulin, the fact that he is taking insulin is to be disregarded in determining whether he suffers from a disability within the meaning of the act; and similarly with other illnesses, for example schizophrenia which can be treated by medicine.  But in this case, Mr Cheasty, it is submitted, never took any of the treatment that was recommended by Dr Jacobson which included both drugs and cognitive therapy.

46	Dr Jacobson, it is clear, did not appreciate that the relevant date for determining whether Mr Cheasty was disabled within the meaning of the Act was the date of the first act of discrimination relied upon (that is, in August 2001), and his report was based upon Mr Cheasty’s condition at the end of May of the following year.  The Employment Tribunal therefore had no direct evidence as to what his condition was in August 2000; but it was entitled to infer, says Mr Gott, that his condition was, as it found, treatable within a relatively short period of time; and accordingly that in determining whether it was likely in August 2001 that he was going to suffer long-term disability the answer would be a resounding ‘no’ because it would reasonably be anticipated by everyone that he would in fact have the treatment which would enable him to recover from his disability very quickly.  That, it was submitted, is a finding to which the Employment Tribunal was entitled to come.

47	It is not a case, as it seems to us, of the Employment Tribunal rejecting the views of Dr Jacobson.  So far as the period for the disability is concerned, Dr Jacobson did not suggest that it had lasted from the earlier episode in 1999/2000, nor did he say that it was likely that there would be a recurrence.  Indeed, Dr Jacobson’s report and that of the other doctor was consistent with the fact that there had been a recovery.
48	Further, although the Employment Tribunal is criticised for finding that the disability arose in July we have noted that three separate dates were given by Dr Jacobson, one of them was in July.

49	It seems to us in those circumstances that the decision of the Employment Tribunal cannot be faulted in this regard and we prefer the submissions of Mr Gott in this regard to the submissions that were made very helpfully by Mr Ward.

50	So far as the second point is concerned, as to the substantiality of the disability, strictly speaking it is not necessary for us to determine this issue; but we will go on to consider it, in case we are wrong as to the first point.

51	It was submitted that the Employment Tribunal had fallen into error, in that day-to-day activities were merely a yardstick and that if someone cannot do unusual day-to-day tasks their inability is still relevant.  It is submitted that the Employment Tribunal should not have rejected the views of Dr Jacobson and implied its own standard and should not have been swayed by its view as to the cause of his disability, which is irrelevant.

52	Dealing with that point first, it seems to us that clearly the cause of disability is irrelevant and we are not satisfied that the Employment Tribunal was in any way swayed by it.  The question of whether an impairment is substantial is a question of fact, not of law.  We were referred to Harvey, paragraph L, 1325.02, which we believe correctly sets out the law; and Mr Gott submitted the Employment Tribunal took full account of what was said by Dr Jacobson but nonetheless gave good reason for not accepting his views.

53	Before one comes onto the question as to what his views were, we need, I think, to refer to what Nelson J said in the case of Abadeh v British Telecommunications Plc [2001] IRLR 23:

30	“Where treatment has ceased the effects of that treatment should be taken into account in order to assess the disability.  This is the case because para. 6 of Schedule 1 applies only to continuing medical treatment, i.e. to measures that ‘are being taken’ and not to concluded treatment where the effects of such treatment may be more readily ascertained.” [our underlining]

We do not consider, therefore, that medical treatment recommended, but not taken up, should be disregarded.

54	The only thing that Mr Cheasty was unable to do was to prepare the lifer reports.  These were regarded by the Employment Tribunal as being a specialist and highly-sophisticated activity.  It seems to us that writing these reports cannot properly be regarded as a day-to-day activity and in this regard we follow the helpful dicta in the Law Hospital case.  It was submitted by Mr Ward that the inability to concentrate during the preparation of a lifer report is to be regarded as a day-to-day activity; concentrating, writing and what have you are ordinary day-to-day activities.

55	The difficulty with that submission, as it seems to us, is that it flies in the face of what is set out in the statutory guidance at C20, to which we have already referred.  For example, it is not reasonable to regard as having a substantial adverse effect:

“Inability to concentrate on a task requiring application over several hours.  Inability to fill in a long detailed technical document without assistance.”

56	Again, we are minded to accept the submissions that were made on behalf of the Respondent and in our opinion the decision of the Employment Tribunal that there was no substantial adverse effect should be upheld, but also upheld on the additional ground that the preparation of lifer reports, the only detriment mentioned by Mr Cheasty, is one that cannot be regarded as a day-to-day activity.

57	We take the view that, albeit an Employment Tribunal must give reasons and give good reasons for departing from the views of an expert, it seems to us that it was justified in doing so in the present case, not only for the reasons it gave, but also for the additional reason that there was in fact on the evidence, no substantial adverse effect on his day-to-day activities.

58	It follows, therefore, that so far as the appeal is concerned it should be dismissed.  We now turn to deal with the cross-appeal on the question of costs.

59	I think it is vital to bear in mind that we are talking about 13 pages of witness statements which we have seen.  It is, I think, helpful to have seen the witness statements because they do, as it seems to us, relate to matters which were the subject matter of the hearing before the Employment Tribunal, in that it related to issues such as the preparation of lifer reports and as to Mr Cheasty’s state of mind, as shown to his superiors when he returned to work in the summer of 2001 after the birth of his child.

60	The letter written by Mr O’Reilly, as we have already said, is a letter that Mr O’Reilly might now regret having written and it might have been helpful if Mr O’Reilly had written a rather more emollient letter, if that is the correct expression.

61	However, it seems to us that the award of costs in these circumstances, bearing in mind we are talking about 13 pages of documents which are not wholly irrelevant, and which the Applicants had already had and considered for the purposes of the January proceedings, that it would be quite wrong, and was quite wrong of the Employment Tribunal, to hold that its inclusion was so unreasonable as to justify the making of an order for costs under Rule 14.

62	It is regrettable that frequently too many documents and too many statements are placed in bundles; but this was not a particularly bad case and it is a case upon which different people may reasonably have different views.  What made this case particularly bad was the unfortunate letter of Mr O’Reilly; but it is not the purpose of an order for costs to punish a solicitor for writing an inappropriate letter.  Further, in our opinion it is difficult to see how this figure of £750 can be justified out of a total cost of £2,000 said to be the cost of considering 90 pages of documents and 3 additional witness statements.  Furthermore, it is unfortunate that a schedule of costs was shown to the Tribunal that does not appear to have ever found its way to the Treasury Solicitor.

63	Although we are naturally always very slow in coming to the conclusion that an Employment Tribunal’s award of costs has been made unreasonably and perversely, we regret to say that in the circumstances of this particular case, for the reasons given by Mr Gott, this award of costs cannot be justified; all the more so as the Employment Tribunal might have taken into consideration, but does not appear to have done so, that the Respondents had in fact been successful in demonstrating that Mr Cheasty himself was not in a position to pursue a claim for discrimination on the grounds of disability, in respect of which they were not in a position to recover their costs.  That is not of course a decisive factor but it is a factor that might have been taken into account in the exercise of the Tribunal’s discretion and there is no evidence that it was.