Appeal No.UKEAT/0084/04/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 May 2004
Judgment delivered on 7 July 2004

Before
HIS HONOUR JUDGE BIRTLES
MR D CHADWICK
MR D NORMAN

DR MOHAMED ABDEL-MAWGOUD	APPELLANT

WEST KENT NHS & SOCIAL CARE TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR JULIAN MATTHEWS
(of Counsel)
Instructed by:
Messrs Slater Ellison Solicitors
22-24 Broad Street
Bury BL9 0DA	
For the Respondent	MS KATE VAUGHAN-NEIL
(of Counsel)
Instructed by:
Messrs Brachers Solicitors
Somerfield House
59 London Road
Maidstone
Kent ME16 8JH	

SUMMARY

Disability Discrimination

The Employment Appeal Tribunal held that the Employment Tribunal had correctly decided the precise date when a duty to make a reasonable adjustment under sections 5 (2) and 6 of the Disability Discrimination Act 1995.  No perversity.

HIS HONOUR JUDGE BIRTLES

Introduction

1.	This is an appeal from the decision of an Employment Tribunal sitting in Ashford, Kent on 1-5, 8 September and 1 October 2003.  The reserved decision was sent to the parties and entered in the Register on 5 November 2003.  The Chairman was Mr J Sprack and the members were Mr B Armstrong and Mrs J M Morrison.

The Employment Tribunal Decision

2.	The unanimous decision of the Employment Tribunal was that:

(i)	the Applicant was unfairly dismissed;
(ii)	the principal reason for the Applicant’s dismissal was not that he had made a protected disclosure;
(iii)	the Applicant did not suffer a detriment on the ground that he made a protected disclosure;
(iv)	the Applicant was not discriminated against contrary to the Disability Discrimination Act 1995.

The Material Facts

3.	The Employment Tribunal made the following findings of fact:

“9.	Dr Abdel-Mawgoud is a Consultant Psychiatrist who has worked in this occupation since 1988.  He has extensive qualifications, and has built a well-recognised international and national reputation in his field.
10.	The Respondent is an NHS Trust It provides mental health services to the Rainham, Gillingham and Medway regions.  Dr Abdel-Mawgoud was originally employed by the North Kent Healthcare NHS Trust, which later became Gateway NHS Trust, and which became the West Kent NHS and Social Care Trust after merging with Invicta NHS Trust in April 2002.'
11.	During Dr Abdel-Mawgoud's employment with the Trust, he worked as a Senior lecturer at Guy's, King's and St Thomas's Medical and Dental Schools of London University.
12.	The Christina Rosetti Day Hospital (CRDH) for the mentally ill was a purpose-built mental unit for the Rainham/Gillingham area.  Dr Abdel-Mawgoud was the lead consultant for the CRDH with overall responsibility for monitoring and treating its patients.  He was engaged there for two sessions per week (a session being a half day of working time).  On 4 October 2000 he was told that there was to be a radical change in the way in which CRDH was to operate.  The proposed changes were led by Mr Mike O'Meara, the Directorate Manager for Mental Health.  The CRDH would be available for therapeutic activities, but the service would become community based rather than hospital based.  The nursing staff at CRDH would be moved out, and would work on the wards.  Dr Abdel-Mawgoud characterised this as the closure of CRDH.  As far as those putting forward the proposals were concerned, it was a “reprofiling and reconfiguration.”
13.	Dr Abdel-Mawgoud was asked by Mr O'Meara, who informed him of these developments, to keep them in confidence until 6 October 2000.  He was expected to inform Dr Ralarasker (his staff grade doctor) that her job was secure.
14.	Dr Abdel-Mawgoud was very worried about the health and safety of the patients who were receiving treatment from CRDH, and considered that there would be no equivalent alternative service in the community.  He feared that a patient with suicidal or violent tendencies, who was used to regular care at a day hospital might commit suicide or otherwise harm himself or others.  He genuinely believed that there was a risk to the health and safety of mental patients denied the services of CRDH, and that there was a risk to the safety of the general public.  This was not a view shared by the Trust management, or by those who put forward the proposal.  Nevertheless, it was a genuine belief on Dr Abdel-Mawgoud's part.  Further, it was a reasonably held belief, just as the belief of the Trust management and those putting forward the proposal was also a reasonable one.
15.	On 6 October 2000, Dr Abdel-Mawgoud told Dr Ralarasker of the proposed closure and that her job was secure.  On the same day, Mr O'Meara and Mr Baker informed the staff of what was going to happen.
16.	On 9 October 2000, Dr Abdel-Mawgoud wrote a memorandum to all CRDH staff (R1/6/40(2): in future the prefix R1/6 will be omitted), stating: 
"I am extremely concerned about the very strong emotional reaction seen by patients in the day hospital and its potentially fatal consequences.
I would therefore urge all of you to carry on your normal duties at the day hospital as per the current policy of its function as an acute day hospital to the highest standard of care that has been well appreciated by all the staff and patients.”
17.	Dr Abdel-Mawgoud subsequently made various formal and informal complaints about developments at CRDH.  He made a number of representations to the Trust seeking to ensure that it was not closed down.  The memo referred to above, which expressed concern about the reaction of the patients, was distributed not only to CRDH staff but also to senior managers and consultants of the Trust.  He expressed his concern at consultants' meetings, and wrote to the Chief Executive, Mr John Mangan, telling him that he intended to follow the NHS Guidelines for whistle-blowing, which require that the Chief Executive should be aware of the relevant concerns before going further.
18.	On 30 March 2001, he wrote to Paul Clark, MP for Gillingham, setting out his concerns.  He wrote several letters to Mr Clark altogether.  On 15 March 2002, he wrote to the Prime Minister, dealing with these matters.  He received a response saying that his letter had been passed to the Department of Health.
19.	On 17 October 2000 (45(1)), Mr O'Meara wrote to Dr Feeney (Lead Clinician) saying he was “disappointed that he [Dr Abdel-Mawgoud] has obviously not spoken to Dr Ralarasker as per our agreement”.  The agreement in question was that Dr Abdel-Mawgoud would inform Dr Ralarasker of developments at CRPH and that her job would be secure.  The reason for Mr O'Meara sending this letter was that he had misinterpreted the content of a letter from Dr Ralarasker to Dr Feeney.  His understanding was that Dr Ralarasker had not been informed by Dr Abdel-Mawgoud about the proposals in relation to CRDH.  Mr O'Meara later (18 December 2001, see 268) accepted that this was not the case and that Dr Ralarasker “was merely asking for more advanced consultation about the proposal”. The letter from Dr Ralarasker was not before the Tribunal, but we accepted that Mr O'Meara’s letter was sent as a result of a genuine misunderstanding. 
20.	In early October 2000, there was an incident which involved a patient LG.  This patient had been given Section 17 leave by Dr Abdel-Mawgoud and later came back to the ward having consumed alcohol.  The ward staff had asked Dr Abdel-Mawgoud to tell the patient to hand over her car keys and Mr Baker then raised the matter.  Dr Abdel-Mawgoud regarded Mr Baker's actions as interference with his responsibilities.  He raised the matter with the Chief Executive, Mr Mangan.  The issue was not resolved until 25 June 2001 (188).  On that day, a memo was sent by Dr Rowland to Dr Abdel-Mawgoud which accepted that there had been “clear evidence of miscommunication on behalf of the nursing staff from the ward to Dave Baker, which led him to request Dr Abdel-Mawgoud's revision of section conditions.  (141 incorporated in 188). 
21.	In the meanwhile, this issue had been referred by Dr Abdel-Mawgoud to the Chief Executive.  Mr Mangan in a letter of 4 December 2000, had stated in part:
“I do expect that staff should challenge decisions of the RMO if they have a chance to do so…Managers and senior clinicians have a responsibility to create an environment where such concerns are raised by staff without fear.”
22.	At a meeting of the Mental Health Consultants Committee on 9 February 2001, Dr Abdel-Mawgoud raised the question of Mr Baker's letter to him.  In doing so, he made reference to the fact that he had referred the matter to the Chief Executive.  The minutes of the meeting state in part, dealing with Dr Abdel-Mawgoud's account of the matter: 
"Unfortunately the Chief Executive acted in a strange way.  Dr Abdel-Mawgoud requested the Chief Executive to conduct an official investigation into the issue, who asked the locality manager what his opinion was and Mr Mangan was satisfied with the response.  Mr Mangan ended his letter by saying 'We, in the Trust, encourage our staff to challenge consultants' which Dr Abdel-Mawgoud thought was a strong word to have used.  This was a very serious issue because there was a clear and deliberate attempt to distract clinicians from doing their job." 
23.	The quotation which Dr Abdel-Mawgoud gave of Mr Mangan's letter was incomplete, and misleading for that reason.  Mr Mangan attended the next meeting of the Consultants Committee on 9 March 2001 (126-130).  He wanted minutes of what Dr Abdel-Mawgoud had said at the meeting to be raised as they were inaccurate.
24.	In January 2001. Mr Peter Hasler (who was working, not for the Trust, but for West Kent Health Authority) wrote to Dr Abdel-Mawgoud expressing concern about the patient TLG.  This patient had been admitted as a private patient, paid by the NHS (78).  Mr Hasler said:
"I was very surprised to see that you are acting in the capacity of local consultant and his consultant at The Priory, Ticehurst.  I consider this to be completely unacceptable and this is a situation that should not have arisen."

25.	The letter resulted from a telephone call which Mr Hasler had made to Mr O’Meara.  Mr Hasler asked Mr O'Meara for the name of the Rainham consultant.  Mr O’Meara replied that this was Dr Abdel-Mawgoud.  He did not realise the reason why Mr Hasler had required this information.  In fact, the patient TG was not living in the part of Rainham for which Dr Abdel-Mawgoud provided consultant cover.  As a result, Mr Hasler wrote his letter, which had the implication that there was a conflict of interest on the part of Dr Abdel-Mawgoud in that he was acting as local consultant and also consultant for the patient at The Priory.  This was a serious and distressing allegation.  It resulted from information which Mr O’Meara thought to be correct, but which was in fact incorrect, given the reason for the information being sought.  There was clearly no conflict of interest, as Dr Abdel-Mawgoud had not referred TG to Ticehurst.  He was TG's consultant at Ticehurst, but he was not his local NHS consultant, as he was not in his catchment area.  Dr Abdel-Mawgoud was concerned about the allegation.  This concern was aggravated by a memo which he received dated 8 June 2001, entitled “Potential conflict of interest”, and scheduling a meeting.  The meeting was later cancelled and never held.  There was a very considerable delay in dealing with the matter, and it was not properly resolved until 9 November 2001 (248 and see also 268). 
26.	On 26 April 2001, Mr O’Meara wrote to Dr Abdel-Mawgoud saying: 
"I have been informed today that you have asked two patients to come to the hospital in order for them to be admitted in the hope that two patients could be admitted to the private sector.  This practice has caused some distress to the nursing staff as the two patients who you had hoped to be admitted to the private sector have not been found beds.  I would be grateful if you could ensure that before you ask patients to attend the hospital for admission that you ensure that there are beds available." 
27.	The practice was that the consultants would usually liaise with ward staff prior to seeking admission of patients to a ward.  The duty of the consultant, however, was to make a clinical assessment.  The letter referred to (154) was in essence a request for Dr Abdel-Mawgoud's co-operation with the ward staff.  He took it that the letter carried the implication that he was discharging patients to the private sector.  We concluded that this was not the intention in writing the letter, and that it did not contain that implication in any event.  Essentially, what was involved was a misunderstanding. 
28.	Again, this was an issue which should have been resolved satisfactorily within a couple of weeks.  In the event, Mr O'Meara apologised for sending the letter on 28 January 2002, after a mediation session (277).
29.	On 26 April 2001, Mr Mangan sent to Ms Ruth Baird of the BMA, who represented individual doctors at the Trust, a letter (152) which had no explicit reference to Dr Abdel-Mawgoud and appeared to be mainly about some other consultant.  It made reference to the behaviour and attitudes of doctors who had 
"come from minority ethnic backgrounds, most come from Middle Eastern countries and some, if not all, have worked together in Saudi Arabia. 
Many of the behaviours and attitudes that are shown appear to reflect cultural norms.  At one level this is appropriate.  However, tensions are now evident and dysfunctional behaviours emerging because of the lack of integration with NHS modernisation and Trust standards.”
30.	On 5 June 2001, there was a meeting which Dr Abdel-Mawgoud attended, at which the Chief Executive and a number of others were present.  The meeting discussed a report from Dr Reza and Karen Dorey into the changes made to day services.  Dr Abdel-Mawgoud voiced his concerns.  Although he later complained about his treatment at this meeting, there was nothing improper about the way in which he was treated, or the way in which the meeting was handled.
31.	Dr Abdel-Mawgoud also made complaints about a number of the letters which he received from Mr Mangan (61.71.75, 118.134 and 149).  We concluded that there was nothing threatening or undermining in this correspondence.

32.	Discretionary points may be awarded to consultants once they have reached the highest grade within their remuneration band.  Dr Abdel-Mawgoud had reached this grade, and was involved in applications for discretionary points in 1999 (received two points) and 2000 (received one point).  The discretionary panel sat on 2 May and 10 May 2001 (104-111 and 160-170).  The panel decided not to award discretionary points to Dr Abdel-Mawgoud.  There was no evidence before us to suggest that this decision was improper.  Dr Abdel-Mawgoud subsequently appealed against the decision.  The appeal hearing was postponed on the application of his representative at the time, Mr Delaney of the BMA.  When the Thames Gateway NHS Trust was dissolved in March 2002, this appeal was still outstanding.
33.	Dr Abdel-Mawgoud sought a report into his whistle-blowing, to deal with his concerns about the reprofiling of CRDH.  This investigation was carried out by Ms Wendy Kear (Non-Executive Director of Thames Gateway Healthcare NHS Trust at the time) and Professor Mathew (as BMA representative).  This report (286) focused upon the restructuring of the day hospital services at Medway.  The report concluded that the process of the change which had been implemented was unacceptable.  The authors agreed with Dr Abdel-Mawgoud that the process could have been handled far better.  However, they accepted the evidence that the arrangements at CRDH were outdated and not cost efficient, nor the best use of resources, nor in the best interests of patients.  They also concluded that the initial investigation which had been carried out had failed to follow a correct procedure, and should have interviewed Dr Abdel-Mawgoud. 
34.	On 14 December 2001, a mediation meeting was held between Mr O'Meara and Dr Abdel-Mawgoud.  A letter from Mr O'Meara (268) was sent a few days later, stating that he had acted upon misinformation in respect of the allegations which he had made.
35.	In late 2001, Dr Abdel-Mawgoud took a period of unpaid leave, followed by a period of sick leave (210 and 220).  He later asked for permission to work during his unpaid leave, so as to obtain some income.  He was granted permission for unpaid leave of six weeks during which he could undertake external employment on 3 October 2001 (229).  During his unpaid leave, he worked for four weeks at another organisation (Mid-Cheshire Trust) and his work there was well received.
36.	He decided to return to work at the Trust on 16 November 2001.  On 21 November 2001, he received a letter from Dr Rowland setting out various options (257).
37.	From 3 December 2001, Dr Abdel-Mawgoud was off sick again.  He returned to work on 7 January 2002.  Upon his return to work, he was assessed by Occupational Health.  In a letter dated 7 February 2002, Dr Cheng (279) stated:
“This Consultant Psychiatrist attended for an assessment of fitness to work.  He has returned to full-time duties since early January 2002.
He gave a graphic account of the difficulties he had encountered in the last 18 months.  It would be helpful to have them resolved in order to facilitate a suitable recovery.  Having reviewed his job description and clinically assessed him, I concluded he is fit for his contract duties.
However, I would advise that he be given some temporary (say six months) clinical support to clear any backlog during his absence to avoid excessive caseload.”
In fact, Dr Rowland had, during Dr Abdel-Mawgoud's absence, taken steps to ensure that his work was dealt with.  He upgraded Dr Ralarasker temporarily, and employed a middle-grade doctor to cover the work.  Dr Abdel-Mawgoud did not face a significant backlog upon his return.
38.	On 18 March 2002, Dr Abdel-Mawgoud had a 2-hour meeting with Mr Jon Wilkes, the newly-appointed Chief Executive of the merged Trust which was to come into existence on 1 April 2002.
39.	On 17 April 2002, Pauline Lucas of the Medical Personnel Department telephoned Dr Abdel-Mawgoud to say that she was able to provide him with two job descriptions for positions currently vacant in Dartford.  He told her he was interested in both jobs.  On 25 May 2002, Dr Abdel-Mawgoud was signed off sick for four weeks.  While he was on sick leave, the BMA submitted on his behalf an Originating Application alleging detriment as a result of having made a public interest disclosure.
40.	There was correspondence between Dr Abdel-Mawgoud and Dr Sadik, (Medical Director) relating to the former’s position.  On 2 July 2002, Dr Sadik wrote to Dr Abdel-Mawgoud a letter which ended:
"The Trust will be happy to make a fresh start if you withdraw your litigation and fulfil all the commitments as agreed with immediate effect until such time as there will be a change in your terms of employment.  In the meantime I would be grateful if you would send me your latest job plan, timetable and appraisal.”
41.	Dr Sadik wrote a further letter on 16July 2002 (332a) which stated in part:
"... I consider that we need more information about your current health. In these circumstances and in order that we may have a meaningful discussion on 25 July.  I have made a referral for you to Occupational Health.  I have asked for these steps to take place as soon as possible so that we may have the relevant reports in readiness for the meeting.  On the 25th we can discuss your work allocation and agree a way forward.”
42.	Dr Sadik had not made a referral for Dr Abdel-Mawgoud to Occupational Health.
43.	On 25 July 2002, there was a meeting between Dr Abdel-Mawgoud, Mr Delaney of the BMA (who represented him), Dr Sadik, Mr Wilkes and Mrs Norris (Director of HR).  There was some discussion about what had taken place at the previous meeting between Mr Wilkes and Dr Abdel-Mawgoud.  Mr Wilkes thought that Dr Abdel-Mawgoud had agreed to drop his litigation, in order to draw a line under the matter and make a fresh start.  Dr Abdel-Mawgoud was adamant that he had not agreed to do this.  There were discussions about what Dr Abdel-Mawgoud could do in the way of work for the Trust.  He said that he could not do community work at Medway, because he was suffering from post traumatic stress.  The Trust relied upon Dr Cheng's letter of 7 February 2002.  In due course, the Trust representatives suggested that he go onto sick leave whilst his fitness to work was assessed.  Dr Abdel-Mawgoud stated that he was prepared to go on “special leave" which was permitted absence with full pay.  The Trust agreed to this.  They said that when they had the results back from the Occupational Health Doctor, they would re-evaluate the position.
44.	The task of referring Dr Abdel-Mawgoud to Occupational Health was left to Dr Sadik.  He went on leave the day after the meeting, and left it with his deputy (Dr Ruth Hirons) to do.  He left her a message to tell her that there was a referral to be made.  It is not clear what happened to that message, and it appears that Dr Hirons passed the matter on to Mrs Norris on about 26 September 2002.  This was a delay of some two months, which was occasioned by the filling in of a simple referral form, which on any standard must be unacceptable.  Even after the matter was referred to Mrs Norris, nothing effective was done to carry out a referral.  It could reasonably have been carried out within a couple of weeks after it had been decided on at the meeting of 25 July 2002.
45.	During the course of September 2002, a question was raised over the accuracy of Dr Abdel-Mawgoud's c.v., and research which he had been doing at the Maudsley Hospital.  There was also an issue about an allegation that Dr Abdel-Mawgoud had sent a private invoice for £640 to the Metropolitan Police Occupational Health Department for a report on an NHS patient.  The Trust notified the NHS Counter-Fraud Authority.  They took over the investigation, and the Trust was not involved.
46.	However, once the Counter-Fraud Authority became involved, the referral of Dr Abdel-Mawgoud to an Occupational Health Consultant was put on hold by the Trust.  It was not reasonable to do so.  Dr Abdel-Mawgoud did not know of this investigation by the NHS Counter-Fraud Authority until some time later.
47.	On 25 October 2002, Dr Abdel-Mawgoud resigned (334).  He stated that the Trust’s conduct towards him had been “calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee as well as contravening the protected disclosures provisions of the Employment Rights Act 1996".

48.	Shortly after he resigned, he heard of the investigation by the NHS Counter-Fraud Authority referred to above.  He was interviewed about that matter on 30 January 2003.  On 18 February 2003 (453) he received a letter from the Counter-Fraud Authority stating that the allegation against him had been that he was working in private practice when he should have been fulfilling his NHS commitment.  It confirmed that there was no evidence that his private work conflicted with his NHS commitments (letter of 18 February 2003 on 453).  The investigation was closed and no further action taken. 
49.	On 7 November 2002, Dr Abdel-Mawgoud submitted the second Originating Application to the Tribunal.  This alleged constructive dismissal, based upon the events set out above.  It further alleged that the stress-related illness from which he suffered amounted to a disability under the provisions of the Disability Discrimination Act 1995.  He claimed that the Trust had failed to make reasonable adjustments, and so had discriminated against him.  The adjustments were in respect of his clinical duties. 
50.	The material time, so far as the claim for failure to make reasonable adjustments is concerned, is between August 2001 and 25 July 2002.  From that date, he was on special leave on full pay.  This meant that the duty of the Trust to make reasonable adjustments was in abeyance, pending production of an Occupational Health report.  It was not in dispute that he was suffering from a mental impairment within the meaning of the 1995 Act.  What is in dispute is whether he was disabled within the meaning of the Act at the material time. 
51.	We received cogent and convincing evidence from Dr Abdel-Mawgoud and also from Dr Michael Crowe that he was disabled at the time of the Tribunal hearing.  However, there was no evidence of any weight about the extent to which his normal day-to-day activities were affected during the material period.  Such evidence as we did receive in relation to that period tended to point away from any substantial adverse effect upon his normal day-to-day activities at that time.  For example, he stated under cross-examination, that no complaints were made about his competence as a practitioner.  He performed his day-to-day tasks as a Consultant Psychiatrist “to a minimum safe level”.  When away from the Trust, he did not have a problem with work, as is evidenced by the highly favourable response of the Mid-Cheshire Trust to the work which he did for them.
52.	As to any references to any effect upon possible normal day-to-day activities during the material period, there is a reference in the Occupational Health notes relating to 7 February 2002 (A8/2), “so stressed he can't even open letter".  There was no evidence as to what precisely was meant in the circumstances, given that the comment was written after Dr Abdel-Mawgoud had been working without sick leave for some time, we concluded that this did not refer to a physical inability to open any letter.  It was more likely to refer to a fear of opening letters which related to his ongoing difficulties with the Trust.  In any event, this limited and oblique reference was quite insufficient to discharge the burden of showing that Dr Abdel-Mawgoud was disabled at the material time.
53.	The evidence of Dr Crowe was directed essentially at the current position, rather than the relevant period.  The most that he was able to say was that things have not changed much over the last year, so that what he said was “going back to August 2002".  For the reasons outlined above, however, they did not have relevance to the material period, which for practical purposes ended on 25 July 2002.
54.	Thus, although we concluded that Dr Abdel-Mawgoud was disabled at the time of the hearing, he did not discharge the onus to prove that he was unable to perform normal day-to-day activities during the material period.”

The Employment Tribunal Decision

4.	The Employment Tribunal decision is in conventional form.  It begins with a general statement of the Appellant’ claim: decision paragraph 1; sets out the issues it has to decide in relation to constructive dismissal, protected disclosure and disability discrimination: decision paragraphs 2-5; sets out the evidence it heard and read: decision paragraphs 6-7; sets out the material facts: decision paragraphs 9-54; sets out the respective parties’ cases: decision paragraphs 55-56; the law: decision paragraphs 57-65; and then set out its conclusions: decision paragraphs 66-83. The entire decision runs to 20 pages.

The Notice of Appeal

5.	The Notice of Appeal is only against the decision that Dr Abdel-Mawgoud was not discriminated against on the grounds of disability, contrary to the Disability Discrimination Act 1995.  It is therefore helpful at this stage to set out the Employment Tribunal’s reasoning on that issue.  Before doing so it is necessary to refer to the fact that the Employment Tribunal considered in detail the Appellant’s claim that there had been an unfair constructive dismissal and it did so by considering the history of his treatment by the Respondent: decision paragraphs 66-78.  It is not necessary to refer here to the way the Tribunal dealt with the protected disclosure claim because that does not form part of the appeal.

6.	The Tribunal dealt with disability discrimination in this way:

“82.	As to the Applicant’s claim for disability discrimination, the first point at issue was whether he was disabled at the material time.  There was clear and cogent evidence from him that he was currently impaired.  There was, however, no such evidence of substantial adverse long-term impairment at the material time – that is the time at which the alleged failure to make a reasonable adjustment took place.  In any event, we concluded that the Respondent had made a reasonable adjustment to Dr Abdel-Mawgoud’s impairment.  They made efforts to look for alternative posts.  They made arrangements to ensure he was not confronted with a backlog.  They put him on special leave, which involved full pay; he resigned without returning to work for reasons which have been canvassed above.  We concluded therefore that the Applicant’s claim for disability discrimination must fail on the grounds that:
(a)	he had not shown that he was disabled within the meaning of the Act at the material time; and
(b)	in any event, the Trust made a reasonable adjustment to his impairment.”

7.	As the Notice of Appeal makes clear, the appeal is divided into several parts.  We are grateful to Mr Julian Matthews and Ms Kate Vaughan-Neil for their very helpful Skeleton Arguments and cogent oral submissions.  We will deal with the three grounds of appeal by setting them out in what seem to us to be the order of importance.  This is not the order in which they were argued before us but having heard submissions on all three grounds of appeal it seemed to us that overarching this appeal was the legal test of perversity.  Appeals on the ground of perversity will only succeed where it is shown that no reasonable Tribunal, properly directed in law, could have reached the decision on which the particular Tribunal has reached: Melon v Hector Powe Ltd [1981] ICR 43 at 48.  In Yeboah v Crofton [2002] IRLR 634 at paragraph 93 Mummery LJ said this:

“93.	Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached.  Even in cases where the Appeal Tribunal has 'grave doubts' about the decision of the Employment Tribunal, it must proceed with 'great care': British Telecommunications plc v Sheridan [1990] IRLR 27 at paragraph 34.”

8.	With that background in mind we turn to the three grounds of appeal as formulated by Mr Matthews in his Skeleton Argument.

Ground 1: What did the evidence show was the date from which the Appellant started to suffer from disability, as defined by the 1995 Act?

9.	In essence, Mr Matthews criticised the Employment Tribunal’s decision because:

(a)	it failed to have any, or any proper, or adequate, regard to the medical evidence of Dr Michael Crowe, the Consultant Psychiatrist who had been treating the Appellant from 1 August 2002, or to any other available evidence of the Appellant’s condition;
(b)	that that evidence showed that the Appellant had been developing the symptoms of his illness since about August 2001; and
(c)	that this was the only proper interpretation of the evidence because it was supported by documentary evidence from the Respondents and staff.

10.	Having heard that evidence the Employment Tribunal wrongly placed undue reliance upon the evidence that “no complaints were made about his competence as a practitioner.  He performed his day-to-day tasks as a Consultant Psychiatrist ‘to a minimum safe level’”: decision paragraph 50; and also upon the Appellant’s ability to work well for the Mid-Cheshire Trust.  Furthermore, the Tribunal erred in law in wrongly interpreting Dr Crowe’s evidence as being “directed essentially at the current position rather than the relevant period” when it patently was not.  In our judgment that is a submission on perversity.  Dr Crowe’s reports are before us: EAT bundle pages 71-75, as are the notes of his evidence taken by the two solicitor representatives in the Employment Tribunal: EAT bundle pages 76-81; and the notes taken by both solicitors of Dr Abdel-Mawgoud’s evidence: EAT bundle page 21.  He was not cross-examined.  We also note that:

(a)	Dr Abdel-Mawgoud submitted two lengthy witness statements which were read.  These apparently did not specifically deal with any adverse effect on his day-to-day activity;
(b)	the Respondent did not call any medical evidence itself.

11.	In support of his first ground of appeal Mr Matthews took us in some detail through the evidence we have referred to above.  It is conveniently summarised at pages 2-6 of his Skeleton Argument.  Likewise, the Respondent analysed the evidence referred to above in considerable detail in support of its submission that there was adequate material in the medical evidence which enabled the Employment Tribunal to come to the conclusion that:

51.	“…  However, there was no evidence of any weight about the extent to which his normal day-to-day activities were affected during the material period.  Such evidence as we did receive in relation to that period tended to point away from any substantial adverse effect upon his normal day-to-day activities at that time.”

12.	The Respondent’s Skeleton Argument also analysed the medical evidence and the evidence of Dr Abdel-Mawgoud in considerable detail.

EAT Decision

13.	We are mindful of the remarks of Mummery LJ in Yeboah at paragraphs 94-95 where he said this:

“94.	Over the years there have been frequent attempts, consistently resisted by the Employment Appeal Tribunal, to present appeals on fact as questions of law.  The technique sometimes employed is to trawl through the extended reasons of an employment tribunal, selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence and alleging, without adequate particulars, supporting material or even proper grounds, that these particular findings of fact are perverse and that therefore the overall decision is perverse.  An application is often made to obtain the notes of evidence made by the chairman in the hope of demonstrating that the notes are silent or incomplete on factual points, that the findings of fact were not therefore supported by the evidence and that a question of law accordingly arises for the determination of the Employment Appeal Tribunal.
95.	Inevitably, there will from time to time be cases in which an employment tribunal has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence.  In such cases the appeal will usually succeed.  But no appeal on a question of law should be allowed to be turned into a rehearing of parts of the evidence by the Employment Appeal Tribunal...”

14.	In our judgment, what the Appellant is seeking to do in this ground of appeal is to do precisely what the Court of Appeal has said we should not do: that is, to trawl through the evidence and in effect see whether we can find some error in the approach of the Employment Tribunal.  We refuse to do so.  In our judgment the Employment Tribunal read the documentary evidence including the reports of Dr Crowe, heard the oral evidence including his cross-examination, and the limited evidence of Dr Abdel-Mawgoud on this issue.  It heard the submissions of the parties and was fully entitled to reach the decision which it did: paragraph 51 of its decision set out above.  There was no error of law here.

Ground 2

15.	Mr Matthews’ second ground of appeal is whether there was a “cut-off date” after which there can have been no failure to make reasonable adjustments.  The following passages in the Employment Tribunal decision are relevant here:

“50.	The material time, so far as the claim for failure to make reasonable adjustments is concerned, is between August 2001 and 25 July 2002.  From that date, he was on special leave on full pay.  This meant that the duty of the Trust to make reasonable adjustments was in abeyance, pending production of an Occupational Health report.  It was not in dispute that he was suffering from a mental impairment within the meaning of the 1995 Act.  What is in dispute is whether he was disabled within the meaning of the Act at the material time.
51.	We received cogent and convincing evidence from Dr Abdel-Mawgoud and also from Dr Michael Crowe that he was disabled at the time of the Tribunal hearing.  However, there was no evidence of any weight about the extent to which his normal day-to-day activities were affected during the material period.  Such evidence as we did receive in relation to that period tended to point away from any substantial adverse effect upon his normal day-to-day activities at that time…
52.	…  In any event, this limited and oblique reference was quite insufficient to discharge the burden of showing that Dr Abdel-Mawgoud was disabled at the material time.
53.	The evidence of Dr Crowe was directed essentially at the current position, rather than the relevant period.  The most that he was able to say was that things have not changed much over the last year, so that what he said was “going back to August 2002".  For the reasons outlined above, however, they did not have relevance to the material period, which for practical purposes ended on 25 July 2002.”

16.	Mr Matthews submitted that by 25 July 2002 the Appellant was plainly a disabled person and the Respondent had full knowledge of that fact.  The obligation under section 6 of the 1995 Act to make reasonable adjustments was therefore engaged.  Failure to do anything between 25 July 2002 (when Dr Abdel-Mawgoud was placed on special leave on full pay) and 25 October 2002 (when Dr Abdel-Mawgoud resigned) put the Respondent in breach of its section 6 duty: Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566.  Alternatively it was not a reasonable adjustment to place the Appellant on special leave without taking the necessary steps to carry out an assessment, contrary to the finding of the Tribunal: decision paragraph 82.  See Meikle v Nottinghamshire County Council (unreported, EAT/0033/03, His Honour Judge Ansell, 26 September 2003).

EAT Decision

17.	In our judgment this ground of appeal cannot succeed because in order for it to do so the Appellant must persuade us that he was disabled within the meaning of the 1995 Act for the period 25 July 2002 – 25 October 2002.  It is only if he is disabled within the meaning of the Act for that period does the Respondent’s duty to make reasonable adjustments arise.  We have already decided that the Employment Tribunal were not in error in holding that Dr Abdel-Mawgoud was not disabled within the meaning of the Act on 25 July 2002.  It follows, if he was not disabled on 25 July 2002, he was not disabled between that date and 25 October 2002.  No duty to make reasonable adjustments therefore arose between those two dates.  There is no suggestion, either in the medical evidence or in the Applicant’s Skeleton Argument before the Employment Tribunal: EAT bundle pages 92-94, which suggests in any way that Dr Abdel-Mawgoud’s medical condition altered between August 2001 – 25 July 2002 on the one hand, and 25 July – 25 October 2002 on the other.

18.	The second reason for the Tribunal ignoring the period after 25 July 2002 is that it specifically found Dr Abdel-Mawgoud was on special leave on full pay for that period.  Indeed, there is no dispute about that fact.  It is in effect the third ground of appeal.

Ground 3

19.	The third ground of appeal is that the Respondent did not make reasonable adjustments for Dr Abdel-Mawgoud for the period 25 July 2002 – 25 October 2002.  Mr Matthews says that the Employment Tribunal finding that sending Dr Abdel-Mawgoud on special leave on full pay for that period was a reasonable adjustment was perverse.  …..background he refers to various findings of fact by the Employment Tribunal in relation to the Respondent’s way it dealt with the Appellant’s complaints prior to 25 October 2002: decision paragraphs 28, 29 and 41.  They were again referred to as “unacceptable delays” by the Employment Tribunal: decision paragraph 76.

EAT Decision

20.	We have already set out the Employment Tribunal’s decision at paragraph 82 and it is quite clear from that it was again referring to a cut-off point at 25 July 2002.  However, it is also crystal clear what the Tribunal did decide about reasonable adjustments:

“82	In any event, we concluded that the Respondent had made a reasonable adjustment to Dr Abdel-Mawgoud’s impairment.  They made efforts to look for alternative posts.  They made arrangements to ensure he was not confronted with a backlog.  They put him on special leave, which involved full pay; he resigned without returning to work for reasons which have been canvassed above.  We concluded therefore that the Applicant’s claim for disability discrimination must fail on the grounds that:
(a)	he had not shown that he was disabled within the meaning of the Act at the material time; and
(b)	in any event, the Trust made a reasonable adjustment to his impairment.”

21.	It is difficult to see what could be clearer than that.  The Tribunal was aware of the duty, the date when it arose and it considered the evidence.  It reached a decision on the facts.  It was not a perverse decision.

Conclusion

22.	For these reasons this appeal is dismissed.