Appeal No UKEAT/0879/04/CK

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 January 2005

Before
HIS HONOUR JUDGE MCMULLEN QC
(SITTING ALONE)

ABBEY NATIONAL PLC	APPELLANT

MRS D K DUTTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR RICHARD POWELL
(of Counsel)
Instructed by:
Messrs DLA LLP Solicitors
Victoria Square House
Victoria Square
Birmingham 
B2 4DL  	
For the Respondent	MISS SAIMA HANIF
(of Counsel)
Instructed by:
Messrs Richard C Hall & Partners Solicitors
Crown Buildings
121A Saughall Road
Blacon
Chester 
CH1 5ET	

SUMMARY

Disability Discrimination
Employment Tribunal Chairman sitting alone hearing a preliminary issue as to whether Claimant was disabled erred in refusing to allow cross-examination of Claimant on what she did and could do at work, such matters also appearing on the joint expert’s report. Law Hospitals NHS Trust v Rush [2001] IRLR 611 applied. Remitted to fresh three-person Employment Tribunal. 

HIS HONOUR JUDGE MCMULLEN QC
1.	This case concerns the definition of disability, and in particular one aspect of it, pursuant to Section 1(1) of, and Schedule 1 to, the Disability Discrimination Act 1995. The particular aspect concerns the conditions known as ‘substantial and long term effect’. I will refer to the parties in the language of the 2004 Regulations as the Claimant and Respondent. 

Introduction 
2.	It is an appeal by the Respondent in those proceedings against the judgment of an Employment Tribunal Chairman Miss E R Donnelly sitting alone at Liverpool, registered with Extended Reasons on the 27 October 2004. The Claimant was represented by Miss Saima Hanif of counsel, who appears today, the Respondent by a solicitor, who today instructs 
Mr Richard Powell of counsel. The Claimant claims disability discrimination, and the Respondent denies it. In due course, a pre-hearing review was conducted on the issue of disability. The essential issue was to determine, as the Chairman defined it, whether or not the effects of the Claimant’s post traumatic stress disorder were substantial and long term. The Chairman decided in the Claimant’s favour. The Respondent appealed on two grounds essentially, with a subsidiary third. Directions sending this appeal to a full hearing were given by His Honour Judge Richardson. 

The legislation
3.	The relevant provisions of the legislation are Disability Discrimination Act 1995 section 1(1): 

“1.	Meaning of “disability” and disabled person”
(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.”

Schedule 1 para 5 provides:

5. Regulations may make provision for the purposes of this Act— 
(a) for an effect of a prescribed kind on the ability of a person to carry out normal day-to-day activities to be treated as a substantial adverse effect;
(b) for an effect of a prescribed kind on the ability of a person to carry out normal day-to-day activities to be treated as not being a substantial adverse effect.

4.	The Tribunal is required to pay attention to Guidance issued under section 3 and so far as is relevant to today’s appeal, the relevant paragraphs are paragraph A.7, which deals with the effects of behaviour:

A.7 Account should be taken of how far a person can reasonably be expected to modify behaviour to prevent or reduce the effects of an impairment on normal day-to-day activities. If a person can behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities the person would no longer meet the definition of disability.     

Paragraph B.6 deals with the effects of treatment:

B.6 If medical or other treatment is likely to cure an impairment, so that recurrence of its effects would then be unlikely even if there were no further treatment, this should be taken into consideration when looking at the likelihood of recurrence of those effects. However, as Section A describes, if the treatment simply delays or prevents a recurrence, and a recurrence would be likely if the treatment stopped, then the treatment is to be ignored and the effect is to be regarded as likely to recur. 

The Chairman directed herself in accordance with certain paragraphs of the guidance, including paragraph C.3 which provides as follows:

C.3 The term “normal day-to-day activities” does not, for example, include work of any particular form, because no particular form of work is “normal” for most people. In any individual case, the activities carried out might be highly specialised. The same is true of playing a particular game, taking parting a particular hobby, playing a musical instrument, playing sport, or performing a highly skilled task. Impairments which affect only such an activity and have no effect on “normal day-to-day activities” are not covered. The examples included in this section give an indication of what are to be taken as normal day-to-day activities.

She gave a useful resume of the matters for consideration as to which no criticism has been made before me. 
The facts 
5.	The facts in this case must be stated very tentatively since this was a pre-hearing review, but the Claimant I am told, worked for the Abbey National Bank, in a local branch where she carried out the work of a teller behind the till, and selling the Respondent’s products, doing ordinary correspondence, dealing with customers, and with correspondence and paperwork. If that is doing a disservice to the Claimant I apologise, but I am simply painting a picture in my mind’s eye of the work she did since I have no description from the findings below. The Claimant had suffered an event which is summarised in the skeleton argument of the Claimant, which both sides accept:

“3.The material background facts can be stated very briefly. The Respondent was employed by the Appellant as a customer advisor. On or around the 27 June 2001, the Respondent was assaulted by a neighbour. This was a catalyst for the Respondent’s subsequent post-traumatic stress disorder. Criminal proceedings were initiated, and the Respondent became embroiled in them. The Respondent was first absent from work from late February 2003 onwards. The Respondent was subsequently dismissed, the effective date of termination being the 30 September 2003, on capability grounds “    

The Chairman found as follows:

“3. I had the benefit of a report from Doctor O’Brien, a consultant psychiatrist, who accepted that the Claimant was suffering from post-traumatic stress disorder, following an alleged assault by her next-door neighbour in 2002. The neighbour was convicted of the assault and then appealed against conviction. That appeal was held in July 2003, after the Claimant had been given notice of termination of her employment. The conviction was quashed. The Claimant gave evidence on how she was during that period. I was referred to document 56 in the bundle, which gave a list of normal day-to-day activities, the performance of which by the Claimant was impaired. This included driving difficulties due to lack of concentration, an inability to do mundane tasks such as ironing, washing and shopping, lack of motivation to do any gardening and standing in trance-like states, staring out of the window for long periods; an inability to deal with correspondence; tiredness, fatigue and insomnia; dislike of appointments and an inability to read a book; slow reactions.” 

She reached conclusions which included a reference to the period during which the examination related. She noted a good deal of incidents in the Claimant’s life, indicating for example, tiredness, fatigue, lack of concentration, and she concluded that the Claimant had ‘PTSD,’ it had lasted a long time, and that the Claimant had a mental impairment, which had affected her normal day-to-day activities substantially. 
The Respondent’s Case
6.	The Respondent admitted that the Tribunal had erred in law, in two respects. First, that cross-examination had been prohibited, or certainly curtailed, in relation to what the Claimant did while she was at work. Secondly, the judgment of the Chairman was not Meek compliant, contrary to the judgments of the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250 and English v Emery Reimbold & Strick Ltd [2002] IRLR 710 (CA). The complaint is that the advocate was prevented from raising questions. As to this a question was asked of the Chairman, and she has kindly provided her answer which is as follows:

“It is quite correct that I would not allow the Respondent to cross-examine on how the Claimant did her work. The Chairman draws the attention of the EAT to paragraph C3 on the “Guidance relating to the definition of disability” which states “the term normal day-to-day activities” does not, for example, include work of any particular form, because no particular form of work is “normal” for most people”. I therefore considered this to be irrelevant”

7.	On that basis, it is contended by Mr Powell, his ground of appeal is accepted to be correct. Against that, it is convenient that I should mention now that Miss Hanif indicated that cross-examination was not prevented, but was merely curtailed. I cannot resolve that issue now, but it seems to me that if cross-examination were curtailed, that would be sufficient for the point to be validly made in an appeal. But in any event, I would prefer the account given by the Chairman, since she essentially agrees with the Appellant’s point. Where a dispute exists as to the recollection of what occurred between the parties, the Chairman’s judgment will prevail (see 
Dexine Rubber Co v Alker [1977] ICR 434 (EAT). The point upon which cross-examination was sought is said to be found in Law Hospitals v NHS Trust v Rush [2001] IRLR 611, where the Court of Sessions, Inner House said this:

“Thus, if an employee has given evidence that he or she is unable to carry out certain normal day-to-day activities at home, or can only do so with great difficulty, it is, in our opinion, clear that evidence as to his or her ability to carry out those activities while at work without significant difficulty could have a bearing on the credibility of the Applicant. Evidence that the Applicant could not carry out such activities at work, or could only carry them out with considerable difficulty could have a bearing on the credibility of the Applicant. Evidence that the Applicant could not carry out such activities at work, or could carry only carry them out with considerable difficulty, could support his or her evidence. Further, in certain circumstances evidence as to particular duties carried out by the Applicant at work could equally have a bearing on the Tribunal’s assessment of his or credibility and reliability”.    

8.	It was contended that, although that point had not been raised expressly by reference to the authority, the solicitor advocate at the Tribunal asked to cross-examine, and had been stopped, and then conducted the case in a more limited way. It was contended therefore, that the case could not fall within the EAT’s own jurisprudence as it has been described in Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719, which militates against the raising of new points not previously raised at the Employment Tribunal hearing, unless there is a ‘rare and exceptional case’ or there is as Laws LJ put it a question of hard edged law. 

9.	The substance of the ground of appeal is that breaches of natural justice had a real impact. What the solicitor was seeking to do was to raise issues of credibility and reliability, based upon the Claimant’s schedule of matters which she said she was unable to perform. Included were inability to make telephone calls, deal with correspondence, gather information, unable to read books, and unable to deal with stress.  A comparison was sought to be made with the material put forward in the report of Doctor O’Brien (a Consultant Psychiatrist) a jointly instructed expert. 

10.	I have been taken to a number of passages where there are divergences between the observations of the Consultant, on what the Claimant could do, and what the Claimant said in her schedule. Thus it is contended there is real substance in this point, rather than one of form. The Guidance which I have cited at A7 and B6 relates to just those matters, including the disposition of the Claimant to take medicine. 

11.	Secondly it is contended, very much as part of the first that the Tribunal Chairman failed to give proper reasons, for amongst other things, she failed to descend into the report of the expert. Finally it is contended, that the Chairman did not specify the time frame upon which her findings were to be based. 

The Claimant’s case 
12.	On behalf of the Claimant, it is contended that there is no exceptional case for introducing a point not made below, Kumchyk v Derby City Council applies [1978] ICR 116 (EAT). Although she accepts cross-examination was curtailed, no explanation was advanced by the solicitor below for wanting to explore matters in cross-examination. Yet if she is wrong on that point Miss Hanif contends that the decision was unarguably right Dobie v Burns International Security Services (UK) Ltd [1984] IRLR 329 (CA), per Sir John Donaldson MR. It is contended that the only evidence before the Tribunal in oral form was that of the Claimant, and she had satisfied the Chairman as to the essential issues. The decision is plainly exigible, from the reasons given, and therefore it is Meek compliant. 

13.	The correct approach of an Employment Tribunal is not to base itself on an opinion given by an expert on the very issues to be decided under the statute. On the contrary, the matter is one for the Tribunal itself (see Vicary v British Telecommunications Plc [1999] IRLR 680 (EAT)) Relying on the judgment of the Employment Appeal Tribunal in Cruickshank v VAW Motorcast Ltd [2002] IRLR 24 (EAT), it is plain the Tribunal Chairman had in front of her the relevant time period.

The legal principles
14.	I accept the legal principles that the Tribunal Chairman is to make her own decision. I also 
accept, that she must give reasons.  She must of course allow a fair hearing, and must allow matters to be ventilated. A point not specifically advanced below may not be raised here, unless it is exceptional.

Conclusions
15.	I have decided to accept for the most part, the submissions made on behalf of the Respondent. I do not accept the criticism that the Chairman did not give reasons, or possibly lost sight of the time period. She identified the jointly agreed period in paragraph 1 of her reasons, as being February to September 2003, and in her conclusions cites the period in question. I thus dismiss the ground based upon a criticism as to that.

16.	As to whether or not the Law Hospitals point may be raised, in my judgment, this is not a truly new point. The solicitor may not have given that authority for what he was doing, and I make no decision about whether he actually explained in full why he wanted to pursue 
cross-examination of the Claimant as to what she did at work, but it is sufficient that cross-examination was raised by the advocate below. It is correct to consider in the context of a person who claims inability to do, or difficulty in doing, certain things at home, how she does parallel things at work. (see Law Hospitals) It is also a principle of natural justice that, provided the point is relevant, it must be open to an advocate to seek to cross-examine the Claimant, upon matters which might touch upon her credibility or reliability. Thus I reject the contention that this is a new point, but if it is, since the law is clear and since natural justice points that way, I would have allowed it to be raised.

17.	The expert’s report is cited by the Chairman but her judgment does not reflect the nuisances of the expert, for the Chairman records that the Consultant had said that the Claimant was suffering from ‘PTSD’ following an assault alleged to have been from her next door neighbour. However, detailed examination of the Consultant’s report, which extends to eighteen pages, shows that his opinion is attenuated and is not as strong as that bold precis. The expert casts doubt upon the Claimant’s schedule of things that she can and cannot without great difficulty do. He also indicates the Claimant’s diffidence about seeking treatment, and indicates that her continued ‘PTSD’ is highly unusual, because in his opinion, her illness would have resolved, so that there would be no diagnostic criteria at the stage at which he was examining her. The difficulties in concentration, which he identifies, are set against what he describes as “a clear record that she was able to function effectively in her job, she was able to consistently balance a till”.

18.	The combination of the judgment in Law Hospitals and the expert’s introduction of occupation-related activities, mean that it was open to the advocate to cross-examine the Claimant about what she did at work. The Chairman would have paid attention to the extracts in the Guidance, which I have cited at A7 and B6, which also reflect upon that together with the treatment. 

19.	It seems to me therefore, that the Chairman was wrong to have excluded that material. Indeed she has committed an error of law, because she regards it as inappropriate for activities to do with work to be the subject of an examination by a Tribunal. That it seems to me is a misreading of Guidance C.3. The point of this Guidance is that although there is no normal activity, since work is diverse, as the Court of Session pointed out “if a Claimant says she cannot lift a kettle at home, it is relevant to know whether she can lift a similarly heavy weight at work”. That it seems to me, is the meaning of guidance C3, and it appears the Chairman has regarded as a no-go area the activities of the Claimant at work. Cross-examination was proper as a matter of law, as a matter emerging from the jointly instructed expert’s reports, and as a way of testing the Claimant’s schedule of what she does at home. After all, what she does at home may not be readily demonstrable, except upon the Claimant’s own account. Whereas the Respondent will have a good idea about what she did at work, and will be able to instruct an advocate on the sort of questions to ask. It follows that the Chairman committed an error of law in refusing to allow proper 
cross-examination on that matter.

20.	It follows that the reasons which she gave are also defective, because they are based upon in an imperfect account. The Claimant’s account may be perfectly understandable, and the Tribunal Chairman would be entitled to accept it, provided it had gone through the filter of an opportunity for proper cross-examination. In this case, it did not, and therefore I hold that the second ground of appeal succeeds too. I am fully aware of the role of the Tribunal, which is itself to make the decision, and decide by reference to points in the expert’s report which she accepted or rejected. This judgment would be unimpeachable, but here there is no examination of the account given by the Consultant which does cast doubt upon the credibility of the Claimant, and so that ought to have been the subject of a reasoned judgment.

Disposal 
21.	The appeal is allowed. I have canvassed the views of counsel as to what should follow, I have in mind the six principles affecting a remission, set out by Burton P and Members in 
Sinclair Roche & Temperley v Heard [2004] IRLR 763, including delay, proportionality, and whether the decision was totally flawed. On the one hand, it would be easy to send this back to the same Chairman, to ask her now to resume the case, and to allow the advocate to ask the questions which were prevented. This case took only one day. I will take the step of remitting it to a different Tribunal. That is an entirely proportionate approach, and while I emphatically do not say that the Chairman may lack professionalism, or have a pre-conceived view so that on second bite she will not resist the temptation to say I told you so, a fact as relevant in Sinclair Roche, the interests of justice are best served by remitting it to another Tribunal. The Respondent may not have confidence in this Chairman, who has contrary to natural justice, blocked the line of 
cross-examination re-examining the matter afresh. 

22.	I can also deal with the point which was raised, but abandoned, and that is whether this issue should be heard by a Tribunal of three. Under the 2004 Regulations there is no principled objection to a pre-hearing being conducted by a Chairman alone, but since the point has been raised, I am prepared to allow this essentially factual question, to be determined by a three-person Tribunal. What is substantial? What are day-to day activities? are questions of fact, which a three person Tribunal will be fully equipped to deal with. In order to avoid an issue which was but is not now the subject of appeal, I will satisfy both parties by allowing this case to be determined by three people. I would like to thank both counsel very much for the help that they have given me.