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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Stoll (UK) Ltd v. Mitcham [2001] UKEAT 1018_01_0612 (6 December 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1018_01_0612.html Cite as: [2001] UKEAT 1018_01_0612, [2001] UKEAT 1018_1_612

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APPEARANCES

 

For the Appellants	MISS ANYA PROOPS (of Counsel) Instructed By: Ms A Badley Messrs Spearing Waite Solicitors 41 Friar Lane Leicester LE1 5RB
For the Respondent	MR MURRAY SHANKS (of Counsel) Instructed By: Mr M Anastasiades Messrs Freer Bouskell Solicitors 10 New Street Leicester LE1 5ND


 


JUDGE PETER CLARK:

1. This is an appeal by Stoll (UK) Ltd, the respondent before the Leicester Employment Tribunal, sitting on 5 March and 17 April 2001, against that Tribunal's decision promulgated with extended reasons on 13 July, that the applicant, Mr Mitcham, was a disabled person for the purposes of the Disability Discrimination Act 1995 ("The Act"). It is said that that finding was perverse.
2. The facts as found by the Tribunal may be summarised in this way.
3. The applicant joined the respondent as a technician in February 1969. In 1985 he was promoted to Training Manager. In 1996 there was a change at the top of the company, a Mr Seifert became Managing Director. The Tribunal accepted that the applicant had a difficult relationship with the new Managing Director. He felt that he was being put under pressure by him. In 1997 he began to feel unwell. He became increasingly anxious. Decisions became more difficult for him and he procrastinated. He ceased his hobby of rifle shooting because he did not feel calm enough to hold a rifle. His problem with migraines worsened. From about September 1999 he suffered shaking episodes. He held onto objects when at work. He spilt water when pouring from a carafe. He held a cup with both hands when taking tea from a machine. When his hands shook he was unable to drive, use a computer or write. His anxiety increased. His concentration suffered.
4. Eventually, on 17 May 2000 he consulted his general practitioner, Dr Freeman. He was prescribed antidepressants and put off work. He underwent five weekly counselling sessions and then discontinued them for financial reasons. Whilst off work he became more relaxed. He began doing housework and going for walks. By September 2000 he was going to the theatre and enjoying social events. He felt able to return to work in early October but on 12 October 2000 he was dismissed, ostensibly on grounds of redundancy.
5. After leaving the respondent's employment he began to feel better and began work at Manchester University in January 2001, working at his own pace for one or two days at a time. However, he felt unable to return to the respondent's premises in order to attend a meeting in March 2001.
6. At the first day of hearing before the Tribunal on 5 March, the principal medical evidence, in addition to a letter from Dr Freeman, consisted of a report from Dr Hugh Ferguson, consultant psychiatrist dated 7 February 2001 following an interview with the applicant on 26 January 2001.
7. Having set out the applicant's complaints about the treatment which he claimed to have suffered at the hands of Mr Seifert, Dr Ferguson laid out the history of the applicant's condition as it was described by him since 1996/7. In the doctor's opinion, the applicant came across as entirely credible. He found that Mr Seifert's behaviour towards him led to marked dysphoria, loss of confidence and a deep seated anxiety amounting to near phobic avoidance. The doctor found that the applicant had been in a genuine state of deep anxiety, that he had been on antidepressants since April, in fact, May 2000 and although his condition improved after leaving the respondent's employment, he was likely to remain vulnerable to anxiety and depressive relapse.
8. It seems that the Tribunal Chairman, Mr Keevash, bearing in mind the provisions of the Act, took the view that the medical evidence was incomplete. The hearing was adjourned for a further joint report from Dr Ferguson. That report is dated 6 April 2001. Dr Ferguson addressed certain specific questions. The first was, "is Mr Mitcham a disabled person?" The doctor replied, "This is a moot question. When in the employ of Stoll (UK) Ltd Mr Mitcham became disabled as defined and was thus unable to carry out normal day to day activities." However, there had been an improvement since leaving the respondents such that he should no longer be classified as disabled. Later in the report, Dr Ferguson observed that the applicant's depressive/anxiety problems were largely the result of environmental stresses other than clinical depression so that a classically good response to antidepressants would not be expected although they may have assisted in recovery of confidence away from employment stresses.
9. We note that no evidence was called by the respondent. Mr and Mrs Mitcham, his wife, gave oral evidence and were cross-examined. The medical evidence came from Dr Ferguson and Dr Freeman in the form of reports. They did not attend to give oral evidence.
10. The Tribunal considered the relevant provisions of the Act, Code of Practice and the Guidance, identifying those parts of the Guidance which they considered material. They then considered the four elements of disability as explained by Mr Justice Morison in Goodwin v Patent Office [1999] IRLR 4, reaching the following conclusions:-

(1) Mental Impairment.

They decided that the applicant had a mental impairment, namely, neurotic depression which was a clinically well recognised illness. (Schedule 1 paragraph 1(1)).

(2) Adverse effect on normal day-to-day activities

The applicant suffered shaking episodes affecting the function of physical co-ordination, (Schedule 1 paragraph 4 1(c)) in his day-today activities such as using a computer, driving and pouring water.

(3) Substantial effect.

The adverse effect was substantial, ie., more than minor or trivial because the shakiness occurred on average several times a week.

(4) Long term effect.

The Tribunal found shaking episodes began in September 1999 and continued on average several times a week until May 2000 and thereafter until October 2000. That was in excess of 12 month's duration, (Schedule 1 paragraph 2(1)(a)).

Had it been necessary to do so, the Tribunal would have concluded, (see Schedule 1 paragraph 6(1) of the Act) that it was probable that the applicant's symptoms would have been worse if he had not been taking antidepressant medication. In these circumstances the Tribunal held the applicant was disabled within the meaning of section 1 of the Act.

11. As we indicated at the outset of our judgment, the issue raised in this appeal is whether that conclusion reached by the Tribunal can properly by categorised as perverse. That is to say, was this a decision which no reasonable Tribunal, properly directing itself as to the law, could reach on the facts as found? The test is a stringent one as Miss Proops accepts. It would be rare indeed for this Appeal Tribunal to be in a position to say that a Tribunal decision supported by evidence and revealing no patent misdirection in law was an "impermissible option" or "plainly wrong" to borrow two of the expressions collected by Mr Justice Mummery in Stewart v Cleveland Guest Engineering Ltd [1994] IRLR 443. It is not for us to substitute our view of the facts for that of the Employment Tribunal.
12. Miss Proops advances the following submissions in support of the appeal.

(1) Mental Impairment

The finding of the Tribunal was that the applicant suffered from neurotic depression. Miss Proops accepts that that is a clinically well recognised illness. The evidence supporting that finding came from the general practitioner, Dr Freeman, in her letter dated 25 May 2000 which was before the Tribunal. Despite that permissible finding of fact, Miss Proops directs her fire to the supplementary report of Dr Ferguson, in which he states his opinion that the applicant's depression/anxiety problems were largely the result of environmental stresses other than clinical depression. That suggests that the depression was mainly externally rather than internally based. It does not, it seems to us, contradict the diagnosis made by Dr Freeman. Nor do we accept Miss Proops submission that Dr Freeman is only a GP and not an expert in psychiatry. She is a medical practitioner. No medical evidence was called by the respondent below to challenge her opinion. The Tribunal were entitled to accept it. That is the end of the point.

It may be that Dr Ferguson's diagnosis was not clear. If so Miss Proops has placed before us a recent letter from Dr Ferguson dated 30 November 2001, solicited by the applicant's solicitors on the advice of Mr Shanks, in which the doctor formally diagnoses the applicant as having suffered a severe adjustment disorder with depression and anxiety, a clinically well recognised disorder. So that on that basis, the mental impairment condition will also be met.

(2) Adverse effect.

Miss Proops submits that although the applicant gave evidence accepted by the Tribunal that his shakiness began in September 1999, there was no medical evidence establishing the necessary causal link between those symptoms and his mental impairment.

Mr Shanks accepts there was no express statement to that effect in the medical evidence below but submits that it was open to the Tribunal to infer that such a link existed. Looking at the evidence as a whole, we accept that submission.

(3) Long term effect.

The Tribunal's principal finding was that the adverse effect was shakiness and its consequent effects on day-to-day activities continued at least from September 1999 until the termination of the applicant's employment with the respondent on 12 October 2000. That is more than 12 months for the purposes of Schedule 1 paragraph 2(1)(a) of the Act. Despite Miss Proops' best efforts to undermine that finding on the evidence, we conclude that it was a finding plainly open to the Tribunal on the evidence.

13. We return to the perversity test. Far from being persuaded that the Tribunal reached an impermissible conclusion in this case, it seems to us that it was a conclusion plainly open to them on the facts as found. Accordingly this appeal is dismissed.
14. Before leaving this case, we should refer to a point raised by Mr Shanks. It appears that this preliminary issue as to whether or not the applicant was disabled in a case involving a complaint, not only of disability discrimination but also unfair dismissal, was taken by the Tribunal of its own motion without application by either party. The result has been that both parties were put to a two-day hearing below and now the applicant has been put to a third day of expense in defending this appeal. It has caused, inevitably, delay in the hearing of the substantive issues in these complaints. We need not relate the earlier authorities in which this Tribunal has said that Employment Tribunals when giving directions should think very carefully before identifying as preliminary issues matters which might more conveniently be dealt with at the hearing of the substantive issues.
15. Following our judgment in this case Mr Shanks makes application under Rule 34 of the EAT Rules for the costs in this appeal on the ground that this appeal was brought and prosecuted unreasonably within the meaning of the Rule. Miss Proops does not seek to resist an order for costs in principle but does take issue with the quantum of costs advanced on behalf of the applicant, namely, £3,000 to cover both counsel and solicitor's fees. On the other side, I am told that the fees will work out in the order of £2,000. We think the latter figure is the appropriate one and accordingly we shall assess the applicant below, respondent here's costs in the appeal at £2,000 plus VAT and we shall order the appellant to pay that sum to the respondent within 14 days.