Appeal No. UKEAT/0456/12/LA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 11 March 2013

Before
HIS HONOUR JEFFREY BURKE QC
(SITTING ALONE)

MS R QURESHI	APPELLANT

MARKS & SPENCER PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS SABRINA SULLIVAN
(Solicitor)
Plumstead Community Law Centre
105 Plumstead High Street
London
SE18 1SB	
For the Respondent	MS AKUA REINDORF
(of Counsel)
Instructed by:
Marks & Spencer Plc
(Legal Services)
Waterside House
35 North Wharf Road
London
W2 1NW	

SUMMARY
DISABILITY DISCRIMINATION – Disability

The Tribunal had to decide a preliminary issue as to whether the Claimant was under a disability.  It was agreed that the Claimant had a mental disorder: the question was whether it had a substantial adverse effect.  The Respondent took two points (1) the Claimant’s evidence related to a subsequent period and not to the relevant period (2) the Claimant’s evidence was untrue.  The Employment Tribunal appears to have decided against the Claimant on point (1); but the evidence was not limited to the period after the relevant period and the decision could not stand.  The ET made no decision on credibility, although it was substantively in issue.

Appeal allowed; issue remitted to new Tribunal.

HIS HONOUR JEFFREY BURKE QC
Introduction
1.	In this appeal the Claimant, Ms Qureshi, appeals against the decision of the Employment Tribunal sitting at London South, consisting of Employment Judge Silverman sitting alone at a Pre‑Hearing Review on 6 July 2012, that she was not, at the material time, a person under a disability for the purposes of section 6 of the Equality Act 2010 (EA) and the Disability Discrimination Act 1995 (DDA) and that therefore her disability discriminations claims were dismissed.

Background and the appeal
2.	The context in which the issue of disability arose needs to be set out; but I can do so in brief terms.  The Claimant – it is not in dispute – for some years was suffering from intermittent depression.  Some years ago she was stabbed by her then‑husband, who on her account was an abusive man.  He was sent to prison for that assault.  She sustained physical injuries that were so serious that she required a colostomy.  Fortunately, that procedure was reversed after a year, but the consultant psychiatrist who compiled a joint report for the purpose of the PHR on the instructions of the parties, Dr Wise, concluded that she had and still has post‑traumatic stress disorder (PTSD) as a result of that episode and that her depression was caused by her experience of domestic violence, the stabbing, the subsequent PTSD and having three young children at home to care for when that episode occurred; and her marriage, of course, broke up.  The children are now adults.

3.	From 2007 the Claimant was employed by the Respondent, Marks & Spencer PLC, as a customer assistant at their store in Woolwich.  In 2009 difficulties arose in respect of which she lodged a grievance, which was not upheld.  She was not happy about that outcome, which was maintained on appeal.  In September 2009 she commenced a period of sick leave.  She was signed off work by her GP on the basis of stress and depression; and she did not return to work before in November 2010 she was dismissed.  She put in an ET1 in which she claimed unfair dismissal, disability discrimination and made other claims; but, by the time the Respondent came to put in their response to that first claim, the dismissal decision had been reconsidered on appeal; and the Claimant was reinstated and transferred to the Bromley store, where she started work in February 2011.  However, her work there was short‑lived; for whatever reasons, she withdrew from working in April 2011; her absence, it is asserted by the Respondent, was unauthorised.  She did not return and was again, and this time finally, dismissed in July 2011.  She then issued a second set of Employment Tribunal proceedings in which she again claimed unfair dismissal and disability discrimination and made other financial claims.  There were also claims of harassment.

4.	The Respondent put in very detailed responses to both claims as part of their resistance to them.  They denied that the Claimant was under a disability.  It was, entirely properly, decided that the issue as to whether the Claimant was at any of the relevant times under a disability should be decided at the PHR heard on 6 July, and it is the Tribunal’s decision upon that issue which is the subject matter of this appeal.  Before the PHR, directions were given for the sequential disclosure of witness statements and for the joint expert’s report to which I have already referred.

5.	At the PHR the Claimant withdrew her claims for unlawful deduction from wages and of harassment.  She sought to add a new claim of sex discrimination but was not permitted to do so; and there is no appeal from that decision.  Thus the remaining claims were whether the Claimant had been unfairly dismissed and whether there had been the acts of disability discrimination of which she complained.

6.	The relevant period, from 2009 to July 2011, straddles the last months of the life of the Disability Discrimination Act 1995 and the first months of its replacement by the relevant provisions of the Equality Act 2010.  Section 6 of the EA 2010 provides, in so far as is relevant, as follows:

“(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long‑term adverse effect on P’s ability to carry out normal day‑to‑day activities.
(2) A reference to a disabled person is a reference to a person who has a disability.”

7.	It is also necessary to refer briefly to the provisions of Schedule 1 to the 2010 Act.  That Schedule is headed “Determination of disability”, and paragraph 2 of that Schedule provides:

“(1) The effect of an impairment is long‑term if—
(a) it has lasted for at least 12 months,
(b) it is likely to last for at least 12 months, or 
(c) it is likely to last for the rest of the life of the person affected.
(2) If an impairment ceases to have a substantial adverse effect on the 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.”

8.	Those provisions do not, for the purposes of this appeal at least, differ in any substantial way from the pre‑existing provisions of the 1995 Act, and it is not necessary to look at those earlier provisions.

9.	For the purpose of the PHR the parties agreed, firstly, that the time relevant to the determination of whether the Claimant was a disabled person was the period from September 2009 to July 2011 and, secondly, that the Claimant did have a mental impairment, namely depression, at that time which was capable of lasting 12 months.  Therefore the issue for the Employment Judge to decide was whether the Claimant’s admitted mental impairment had a substantial and long‑term adverse effect on the Claimant’s ability to carry out normal day‑to‑day activities during the relevant period.  It is common ground that “substantial and long‑term adverse effect” means an effect that is more than minor or trivial. See Goodwin v The Patent Office [1999] ICR 302 and, similarly, other authorities since, to which it is not necessary to refer.

10.	Both the 1995 Act and the 2010 Act had provisions for the issuance by the Secretary of State of guidance about matters to be taken into consideration in determining whether a person was or was not disabled and in particular whether impairment had a substantial adverse effect on the ability to carry out normal day‑to‑day activities.  The Acts differed in that the 1995 Act had and the 2010 Act did not have a list of possible adverse effects, but nothing turns on that for present purposes; and no one suggests, at least relevantly to this appeal, that these two sets of guidance, either in their statutory backing or in their substance, differed in any material way.

11.	The Tribunal had evidence from the Claimant and from her son, whose witness statement was said to be on behalf of his brother and sister; they also had a considerable volume of documents, including the joint medical report to which I have earlier referred.

12.	The Tribunal’s decision on the issue of disability is expressed, it might be said, in brisk terms.  The reasons are set out at paragraphs 9‑11 of the written judgment of the Employment Judge as follows:

“9. However, the Claimant failed to produce evidenced to show that the effect of her condition had a substantial adverse effect on her day to day activities.
10. All the evidence produced to the Tribunal suggest [sic] that the Claimant’s day to day activities had not been substantially adversely effected by her impairment, for example page 127 – the Claimant says she is well, page 4 – she denies ill health or that she could not work (except at the Woolwich branch).  From her oral evidence in cross examination she says ‘I was being monitored by doctors and psychiatrists I was not the one who was saying I was unwell’.  Further on Page 136 she says she is well in October 2010 and page 128 that there is no evidence of mental illness, on page 90 – she says she is not sick, on page 207 – she says her health has always been fine and on pages 155‑157 (medical expert report) it is stated that there has been an exaggeration of symptoms.  Finally, page 155 medical expert report says that there has been a minor trivial effect on the Claimant’s social activities, but there is no reference to any other day to day activities.
11. From the above the Tribunal concludes that there is no evidence to show that the Claimant’s medical condition had a substantial adverse effect on the day to day activities.  She therefore does not qualify as a disabled person under either the [EA] or the [DDA].”

13.	The Employment Judge gave brief oral reasons for her decision at the time, obviously before she produced her written judgment.  Both Ms Reindorf, for the Respondent, and Ms Sullivan, for the Claimant, took a note of what she said.  Unsurprisingly, the two notes do not precisely agree, but they agree to a substantial extent.  Ms Reindorf’s note is as follows:

“I am not going to do this in a technical way because I don’t think that’s fair to the Claimant.  Trying to explain it in a sensible way, it isn’t enough just to show that you had depression and were under the doctor for a long time.  I think everybody accepts that you had depression and you were being treated for it.  To be somebody who can make a claim under the DDA and the [EA] you have got to show that the medical condition that you were suffering from had a substantial adverse effect on day to day activities.  There are various guidelines given in the Acts of Parliament as to how one looks at day to day activities.  There are examples like can you fill a kettle.  There is nowhere that you have suggested that your day to day activities were affected in that kind of way.  That is just one example and it is perhaps a rather simple example, but all of the evidence which we have looked at in this big pile of paper that we have looked at today has really pointed to the very opposite of being badly affected by the disability.  I am not going to go through every example now because I don’t think it is necessary but there are numerous examples which will be in the written document where C in her own words says no I am not ill, I can go to work, I just can’t go to work at Woolwich.  So there is no impairment or adverse effect on going to work, just going to work in a particular place, and that doesn’t qualify as a disability.” 

14.	The notes taken by Ms Sullivan are as follows:

“I am not going to do this in a technical way.  Trying to explain it in a sensible way, it isn’t enough that you had depression and were under a doctor for a long time.  Everybody accepts that you had depression and were being treated for it.  To be somebody who can make a claim under the DDA and EA need not only to be suffering from a medical condition but it needs to have a substantial adverse effect on day to day activities.
There are guidelines given in the Act of Parliament on day to day activities.  I need to look at whether you can fill a kettle?  I can not see that you are affected in that kind of way.  This is one example – simple example.  All of the evidence looked at really pointed to the opposite of being badly affected by the disability.  I am not going to go through every example now.  I heard the evidence of numerous examples – “no not ill – not going to work at Woolwich”.  So there is no impairment or adverse effect on going to work, just going to work in a particular place, and that doesn’t qualify as a disability.”

15.	I do not regard the differences between those two notes as significant.  Both notes show that the only example of day‑to‑day activity to which the Employment Judge referred orally was that of filling a kettle; and she went on to say that the Claimant’s day‑to‑day activities were not affected in that kind of way.  Of course, the guidance does not restrict the type of substantial adverse effects on day‑to‑day activities to physical effects and physical activities.  Disability may arise from a physical or mental impairment, or both, and the guidance under both Acts gives examples of persons who suffer from or the consequences of suffering from both mental and physical impairment.

16.	However, while it is unfortunate, perhaps, that the Employment Judge orally referred only to filling a kettle, that of itself would not take Ms Sullivan very far in this appeal, because what is necessary is to look at what the Employment Judge said in her judgment rather than what she may have said orally; and, while expressing a certain amount of anxiety about what the Employment Judge said orally on either version, I do not regard what she said as persuasive either way in this appeal.

17.	The effect of the case law on what is substantial adverse effect is not in dispute.  I have already referred to the definition of “substantial” as established in Goodwin.  Goodwin is also authority for the proposition that it is important for a Tribunal to focus, in considering a question such as that which confronted the Tribunal in this case, on the things that a person cannot do or can only do with difficulty rather than on things that that person can do.  Ms Sullivan has taken me to an Employment Appeal Tribunal decision subsequent to Goodwin, Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19, in which the Employment Appeal Tribunal, presided over by Nelson J, had to consider facts very similar to those of the present case.  At paragraphs 26 to 27 the EAT said this:

“26. We are however satisfied that the Tribunal did rely too heavily upon the Guidelines in this case and hence erred in their approach to dealing with the matter. They failed to focus on the things which the Appellant could not do or those which she could do with difficulty rather than on the things she could do.  As a consequence they failed to evaluate her evidence properly. They took examples from the Guidance of what the Appellant could do such as being able to eat and drink and catch a ball and then weighed that in the balance against what she could not do e.g. negotiate pavement edges safely.  This was inappropriate; her ability to catch a ball did not diminish her inability to negotiate pavement edges safely.  Her ability to write a cheque or remember her children's or work colleagues names did not diminish her loss of concentration and day to day memory retention, nor her difficulties in using a recipe without having to keep rereading it with the consequence that she could only do a section at a time.
27. Whilst it is essential that a Tribunal considers matters in the round and makes an overall assessment of whether the adverse effect of an impairment on an activity or a capacity is substantial, it has to bear in mind that it must concentrate on what the Applicant cannot do or can only do with difficulty rather than on the things that they can do.  This focus of the Act avoids the danger of a Tribunal concluding that as there are still many things that an applicant can do the adverse effect cannot be substantial.”

18.	For my part, I unhesitatingly accept what was said in those paragraphs.  The Employment Tribunal must concentrate on what the Claimant cannot do, not what the Claimant can do, and has to ask itself: is the adverse effect of the mental impairment – which was admitted to exist in this case – substantial, in the sense of being more than trivial or minor, and long‑term (the latter criterion was not in this case in dispute if there was the substantial adverse effect).

19.	The Claimant’s witness statement is dated July 2012 and must have been put together very shortly before the hearing.  In it the Claimant set out a history of symptoms of anxiety, stress and depression from April 2009 onwards (see paragraphs 2‑15).  At paragraphs 28‑46 she described how her impairment affected her day‑to‑day life.  She started at paragraph 28 by saying, “My day to day life is affected by my disability”, and then she said at paragraph 29, “I feel tired all the time”.  In similar terms, she talked about getting breathless, finding it hard to sleep, her relationships with her family and friends being inhibited, how she had lost interest in her hobbies and in her community work and did not feel confident of using public transport, how she had had lost her appetite, and other matters of that kind.

20.	All those paragraphs are drafted in the present tense.  It was the Respondent’s case at the PHR that, although since the eventual dismissal in July 2011 the Claimant had had a relapse and was suffering from depression to a degree that she had not previously, those paragraphs of the witness statement being in the present tense, there was no evidence as to substantial effect in the period that was agreed to be the relevant period from 2009, when the Claimant first complained of trouble with her line manager at Woolwich, to the date of her effective dismissal in July 2011.  They pointed out that a subsequent relapse is not to be taken into account in considering whether a pre‑existing substantial adverse effect was likely to recur.  However, the argument was not about likelihood of recurrence but whether there was evidence of such long‑term effect during the relevant period rather than as the result of a subsequent relapse, the Claimant’s witness statement being couched in the present tense.

21.	The Respondent’s second argument was that in any event the Claimant was not telling the truth.  Dr Wise, the joint expert, had said in paragraph 51 of his report in answer to the question, “Does Mrs Qureshi suffer from depression?” “Yes”, and -

“Mrs Qureshi describes a pervasive mow mood, impaired energy levels, and having taken an overdose in the past, she has received extensive psychological treatment.”

22.	In paragraph 52 in answer to the question, “[…] can you give any indication as to the overall cause of Mrs Qureshi’s depression?”, he said that she fulfilled the criteria for PTSD, and that her experience of domestic violence, the assault, the subsequent PTSD and having three young children at home to care for was the cause of her depression.  At paragraph 54, in answer to the question, How long do you expect Mrs Qureshi’s symptoms to last?” he said that she had a recurrent depressive disorder which would last for the rest of her life.  In paragraph 56 he was asked what might be regarded as the crucial question for the purposes of the issue before the Tribunal:

“[…] what effect on her ability to carry out day‑to‑day activities did or does it [the depression] have?  Is this effect substantial?  Is this effect long‑term?”

23.	He answered that:

“Mrs Qureshi has stated that she has stopped her social activities.  It would therefore appear to have had a more than minor or trivial effect on normal day‑to‑day activities.
As the effect is likely to recur it is long term.  However balanced against this must be taken into account her abnormally high scores on the Impression Management Subscale of the BIDR v7 as well as her performance on the Forced Choice Visual Memory Tests where she obtained scores worse than those attained by people with severe dementia, depressive disorders or other cognitive impairments.  This is objective evidence of symptom exaggeration.”

24.	At paragraphs 62‑64 he again raised the existence of objective evidence of symptom exaggeration; and it was from that that the Respondent derived their second case to the Tribunal, which I suspect may well have been their more prominent case, that the Claimant was simply not telling the truth about her symptoms.  As to the Respondent’s first point, Ms Sullivan tells me that, when asked by Ms Reindorf in cross‑examination about her witness statement being in the present tense, the Claimant said that what she described related to the whole of the relevant period.  Ms Reindorf says that she did not give that answer and that, being an experienced cross-examiner, she cross‑examined her in such a way as to ensure that she did not give any such answer.  I cannot resolve that issue.  No notes of cross‑examination of the Claimant have been sought; and it seems to me that I simply cannot put any weight on what Ms Sullivan has told me.  Although I am not suggesting for a moment that Ms Sullivan is not telling me what she regards as true, there is an issue about what was said which I cannot determine; and therefore I have to put the suggestion that that answer was given out of my mind.

25.	But that is not the only point on which Ms Sullivan can rely on this issue.  Secondly, she says that the witness statement was drawn up in the way it was because that is the way, in the Disability Advice Service, it is always done.  That may be; if so, it seems to me to be an unsound practice.  If one is trying to describe in a witness statement what has happened historically, to put it in the present tense is potentially courting danger; and I am not persuaded that that is a reason, even if the Employment Judge knew it (and I suspect she may not have done) which helps the Claimant in this case.

26.	However, thirdly, it appears to me that, just as a judgment must be read as a whole, as is often said in this Appeal Tribunal, so a witness statement must be read as a whole; and when in this case the witness statement of the Claimant is read as a whole, it can be seen that she set out in the first part a substantial history of depression, stress, treatment and seeing doctors over the whole of the relevant period.  Paragraph 1 of the witness statement says:

“I am providing this statement in support of my claim that I am disabled within the meaning of the [EA] 2010 for consideration at the PHR which is due to be scheduled.”

27.	Therein is a clue that what has happened here is bad drafting rather than a deliberate description of the Claimant as suffering only from symptoms at the time of the hearing rather than during the relevant period, because the question as to whether the Claimant was disabled at the date of the hearing, which was a year after she had been dismissed, was not a relevant question at all, as the drafter of the witness statement undoubtedly knew.  If one reads the witness statement as a whole, it seems to me that it cannot be said that it cannot be read appropriately as intending to convey information about the symptoms suffered by the Claimant historically during the relevant period.

28.	Furthermore, the son’s witness statement appears, in my judgment, to have historical import.  He describes the Claimant as a personality; he talks about the problems the family has had; and he says at paragraph 7:

“In regards to the problems she has been having at work it makes us really sad that people can treat her in such a manner.”

29.	That, obviously, must have been historical, because she had not been working since July 2010.  He goes on in paragraph 8 to say that his mother had kept the situation from her children because she did not want them to worry, but she became more reserved and quiet and would avoid talking about work, and they could see signs of stress.  At first, they did not ask her what was bothering her and tried to do what they could, and then finally she told them what was going on and how she was being harassed, and how her behaviour changed.  Only after that preamble does the statement describe her symptoms in more detail; but again it does so in the present tense.

30.	There is, furthermore, other evidence from the documents within the bundle that the Claimant had been suffering from symptoms of the kind that she describes in her witness statement during the relevant period.  At page 48 of the supplementary bundle is a patient health questionnaire dated 28 September 2009 in which the Claimant said that she had symptoms as there set out nearly every day.  The point is taken that that must be exaggerated; that goes to the second point, not to this point.  That is accompanied by a report to the Claimant’s GP from the Oxleas NHS Foundation Trust assessment and shared care team, who presumably had issued the patient health questionnaire to which I have just referred, which sets out the symptoms:

“Low mood
Stress of job due to being bullied
Not responding to medication and is feeling worse
Abuse started in May/June this year – feeling depressed since
Tearful lady
Has no choice other than staying away from work
Mood low
No pleasure from life
Hardly sleeps
Appetite very poor”

31.	On the next page, page 51 of the bundle, is a letter sent about ten days later in which the same doctor writes “to whom it may concern”, confirming in more brief terms a similar description of the Claimant’s condition.  There then follow three occupational health reports of the Respondent, at pages 52‑57, of the supplementary bundle in which – although only the middle one of the three was written after direct communication with the Claimant – the occupational health service of the Respondent appears to have decided in December 2009 through to June 2010 that the Claimant’s condition was likely to meet the criteria for disability under the 1995 Act.  I am not to be taken as saying that there was or was not sufficient evidence of substantial adverse effect.  What appears to me to be clear is that, when the evidence was taken as a whole and leaving out of consideration the extent to which the evidence may have been shown to have been untrue by cross‑examination, there was some evidence that the Claimant was undergoing adverse effects during the relevant period; the evidence was not confined to evidence of matters at the time of the hearing or at the time of the witness statement.

32.	I go back now to the Employment Judge’s Reasons.  She said at paragraph 9:

However, the Claimant failed to produce evidence to show that the effect of her condition had a substantial adverse effect on her day to day activities [at the relevant time].”

33.	A first reading of that paragraph and the following paragraphs would not reveal that there was an issue of the type which I have just been discussing; but, given that there was, that paragraph appears to me not to be sustainable.  There was some evidence; how strong it was is not a matter for me to say; but that there was some evidence I have no doubt.

34.	I turn to the second issue.  The Respondent says that it was clear that the Claimant was not telling the truth.  She was cross‑examined about the documents identified by the Employment Judge at paragraph 10; anybody present, says Ms Reindorf, would have seen that in effect her credibility was blown out of the water.  The difficulty about that is that there is nothing in the Employment Judge’s reasons to indicate that there was a credibility issue at all.  She does not find that the Claimant should not be believed in what she said about her symptoms.  At paragraph 10 she set out particular aspects of the evidence about which the Claimant was cross‑examined; and no doubt there were others; but she does not then conclude that what the Claimant said is not true.  She says at paragraph 11:

“[…] there is no evidence to show that the Claimant’s medical condition had a substantial adverse effect on the day to day activities.”

35.	That is reverting to what she said in paragraph 9.  In my view, if it is going to be found by a Tribunal that a claimant has told lies, which is what in effect the Respondent says was the Employment Judge’s decision, that must be spelt out.  It was not spelt out.  If one can read from it that there was such an issue, it is difficult from the judgment to tell in sufficient terms to enable the Claimant to know what had happened and why she had lost that that was indeed the way the Judge was approaching the issue.  There may well be documents which show that the Claimant was not telling the truth.  Certainly, Dr Wise left it open to whoever had to make a decision to decide that she was or was not telling the truth; but the credibility issue which undoubtedly existed is simply not referred to in the Employment Judge’s reasons at all.  Ms Reindorf accepts that, if the Claimant’s evidence was directed at the relevant period and was true, then there was a substantial adverse effect; but she says it was obviously untrue.  In my judgment, that is not what is spelt out in the reasons given by the Employment Judge.

Conclusion
36.	Thus, in these two respects, the learned Employment Judge fell into error; and I am quite satisfied that the Judgment cannot stand and that the appeal must be allowed.  I have discussed with counsel how this case should now proceed.  Ms Reindorf, realistically, in the light of what I have said, does not seek to suggest that a remission to the same Employment Judge could be appropriate; plainly, it could not.  The issue must be remitted to be decided against by a different Employment Tribunal, and I so direct.