APPEARANCES
| For the Appellant |
MR SUTTON
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| For the Respondent |
MR SHORT
|
| |
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MR JUSTICE LINDSAY (PRESIDENT):
- Miss Rachel Marshall, disabled by reason of her Bipolar Affective Disorder (or manic depression) applied to the Surrey Police for a job as a Fingerprint Recognition Officer. She disclosed, in outline, her medical history. She succeeded at interview but, upon her application being considered by the highly qualified Force Medical Officer, she was rejected on medical grounds. She complained of disability discrimination to the Employment Tribunal at London (South). The Tribunal held that the Police had failed to shew that Miss Marshall's treatment was "justified" within section 5 (1) (b) and (3) of the Disability Discrimination Act 1995. The Police, represented here and below by Mr Sutton, now appeal. Miss Marshall, represented here and below by Mr Short, resists the appeal.
- In July 2000 Miss Marshall presented her IT1 for disability discrimination. It indicated that she had applied to be a Fingerprint Recognition Officer (Grade II), Chemical Treatment Support. She suffered and still suffers from Bipolar Affective Disorder and had disclosed that condition to the Police. She was shortlisted, interviewed, tested for aptitude and was then, she claimed, offered the post subject, inter alia, to medical clearance. However, on 29th June 2000 she was told that the Police's Medical Officer had indicated that she did not meet the required medical standard for entry as a Fingerprint Recognition Officer. "In summary", her IT1 complained, "I was told I was the best person for this post and [was] rejected unfairly on grounds of disability, which in my view contravenes the Disability Discrimination Act". A particular complaint was that the Police had not obtained a report on her from her Consultant, Dr John Vaughan, as she had requested should be done, but instead had made their judgment "on the basis of a letter from a G.P. who had never met me" which letter, in any event, she said, was factually inaccurate.
- On 30th August 2000 the Police in their IT3 claimed that the offer of the job had been withdrawn following a recommendation from the Force's Medical Officer that Miss Marshall was not suited for the position. The Police had paid for a report from Miss Marshall's G.P.; the G.P. had forwarded Miss Marshall's medical history to the Force's Medical Officer, who had had vocational training in psychiatry. Dr Vaughan had not been consulted as he was unaware of the nature of the job applied for, or the applicable risks or the COSHH assessment. The job, asserted the IT3, included the use of a number of chemicals and heating and was a very exacting job which required levels of consistency and credibility. The Force Medical Officer feared relapses in Miss Marshall's condition, there being, if such occurred, a risk, asserted the IT3, to herself, to other people in the laboratory and to third parties. An important allegation was that Miss Marshall had decided not to take "what many consider is the normal medication for [her] condition", an indirect reference, as will appear, to lithium.
- There was a hearing at London South under the Chairmanship of Ms M.E. Stacey on 12th and 13th March 2001. The Tribunal also met between themselves on 27th April. The decision was sent to the parties on 24th May 2001. The unanimous decision was that Miss Marshall had been subjected to unlawful disability discrimination contrary to section 5 (1) of the Act. The case was adjourned for remedy.
- On 22nd June 2001 the Employment Appeal Tribunal received the Police's Notice of Appeal. The Chairman's Notes of the oral evidence have been received on some specific topics.
- At the hearing below the Police had admitted that Miss Marshall had a medical impairment which amounted to a disability for the purposes of the 1995 Act and that she had been treated "less favourably", within section 5 (1) (a) of the Act by reason of her rejection for the job by reason of her disability. The contest was as to whether her treatment was shewn to be "justified" within section 5 (1) (b), whether the Police had been under a section 6 duty to make adjustments; if they had been, whether they had breached that duty and, if they had, whether they had shewn that their failure to comply with that duty was justified under section 5 (2) (b).
- Before we return in more detail to questions raised before us we shall first set out some of the Tribunal's findings of fact, together with some references to the documents which had been before the Tribunal below.
- Miss Marshall has academic qualifications of a high order; she has a first class degree in genetics from the University of St. Andrews and a degree in biology (M.Phil.) from Cambridge. Of the job for which she applied the Tribunal said:-
"The purpose of the job is to provide consistency and professionalism in the examination of exhibits submitted to the scientific support department of the Surrey Police Service and to be responsible for the security and integrity of the exhibits submitted to the Chemical Treatment Unit and the maintenance of accurate records of receipt, action and disposal of the exhibits. The Fingerprint Recognition Officer is important - the police have only one opportunity to enhance a finger print and finger print evidence can lead to an individual's acquittal or imprisonment. A high level of accuracy is important in the use of chemicals during the enhancement process and the work involves use of sensitive laboratory equipment and some dangerous chemicals. Surrey Police force employ two Fingerprint Recognition Officers who work independently in the laboratory and other members of staff enter the laboratory from time to time."
Miss Marshall came out second of the applicants for the two new posts on offer. She had disclosed in her application form that she had bipolar affective disorder, the clinical term for manic depression. She had explained:-
"I only have psychotic symptoms during a major episode of illness. This can include auditory and visual hallucinations, extreme fear, impairment of judgment (e.g. walking down a motorway) and acting on impulse that I would normally ignore (e.g. spending more than I can afford)."
She explained that:-
"an acute illness has been precipitated in the past by not eating or sleeping, working very long hours, sometimes all night, trying to deal with too many unresolveable problems, exhaustion and pushing myself beyond the point where I collapse. I became physically ill long before my mental health deteriorated and had symptoms of glandular fever and blackouts."
She also explained in a letter to the Police's Personnel Department of 31st March 2000 that although she had had severe depression she had never harmed herself or made any suicide attempts.
She was taking part, she said, in an Early Warning Signs clinic which had enabled her, she said, to predict if she was becoming unwell long before a clinician could diagnose her and enabled her then to intervene with stress-reducing tactics, including the taking of a drug (then at about once a month) which had a mild tranquillising effect.
- She told the Police in that letter that she had had a particularly bad patch lasting 18 months some 2 years earlier but nonetheless had been able to finish her research at Cambridge. She was particularly pleased, she had added, because she had remained well after stopping lithium therapy.
- The job had been offered to Miss Marshall by Mr David Brownlee, Head of Fingerprints, who had not known of her disability, nor of its effects upon her. The Tribunal said:-
"After the post was offered to the Applicant the matter was referred to the Forces Medical Officer, (SMO) Dr Eileen Cahill. Dr Cahill qualified as a doctor in 1983 and has worked as a specialist in Occupational Medicine for some eleven years with qualifications as an Associate Fellow of the Faculty of Occupational Medical and a Masters degree in Occupational Health. As part of her post graduate training she spent a period of six months attached to a psychiatric unit and has spent three months as a full time Medical Officer within an acute psychiatric ward with responsibility for the admission and treatment of patients with major psychiatric illnesses."
- Miss Marshall had been interviewed on 12th April 2000. On 25th April she was told by the Police that they were interested in progressing her application, that the offer was subject to medical clearance and that she was requested to complete the medical forms sent to her. On 27th April 2000 Miss Marshall, in answer to the request on a form "Give the names and addresses of your present medical practitioner, and those who have treated you for any of the conditions described in questions above" gave the names and addresses of Dr Georgina Williams as her G.P., Dr John Vaughan, Consultant Psychiatrist and Dr Sally Natyncznk, Specialist Psychiatric Registrar. Earlier in the form she had indicated she not only suffered from Bipolar Affective Disorder but had had side effects of lithium on her digestive system (although she had withdrawn from lithium) and was currently being treated for Bipolar Affective Disorder and "Elevated prolactive levels" which, she said, might be due to medication. The prescriptions which she described as what she was then taking did not include lithium. She also gave details of 3 periods she had been in hospital; 1-2 months in 1996, 1-2 months in Spring 1997 and 2-3 months in late 1997. She consented to the Force Medical Officer seeking medical information from any doctor who had attended her at any time. On 9th May 2000 she again so consented in writing in another form, then naming her G.P. as Dr Payler (but at the same address as Dr Georgina Williams) and Dr Vaughan as her Consultant. The form of 9th May indicated that Miss Marshall wished to see the G.P.'s report before it was sent to the Police but did not wish to see the Consultant's report before it was sent on. By contrast, the form of 27th April had indicated she had not wished to see whatever report the Police had required.
- Miss Marshall spoke to Claire Williams of the Police's Personnel Department saying that it would be better to get a report from Dr Vaughan as he treated her for bipolar affective disorder and "she has very little contact with her G.P.". Whether that was a reference to Dr Georgina Williams or to Dr Payler or both is not clear. There is no finding by the Tribunal as to whether or when the message to Claire Williams was passed on to the Force Medical Officer nor whether that officer, Dr Cahill, knew of the 9th May form before, on the same day, she wrote to Dr Georgina Williams saying, after reference to Bipolar Affective Disorder:-
"I understand that Miss Marshall has had a number of hospital admissions for this problem over the course of the past 5 years.
I would be very grateful if you could kindly provide me with a medical report giving details of Miss Marshall's psychiatric disorder, including her presenting symptoms, the treatment at the time, her current management and her current psychiatric status."
- On 2nd June the Police confirmed to the G.P.'s practice they would be responsible for the costs of the report which Dr Cahill had requested. On 23rd June the Police's Occupational Health Unit received a report ("the Rosewarne letter") dated 20th June signed by Dr Helen Rosewarne from the same address as Doctors Payler and Williams. It began:-
"The following report is taken from the notes of Rachel Marshall, we have documentation on the notes dating back to Rachel's birth."
The Tribunal summarised the letter but it may be useful, in order to derive its full meaning, to set it out more fully. It continued:-
"From the notes it would appear that her first psychiatric presentation was in August 1996 she was admitted to Castle Hospital, Guernsey and was an in patient between 22nd August and 19th September 1996. She was commenced on Lithium Carbonate 800mgs at night at this stage and also on Chlorpromazine 100mgs at night. Miss Marshall remained well until May 1997 when she became acutely psychotic expressing paranoid and grandiose delusions. She remained an in patient at Fulbourn Hospital, Cambridge between the 11th March 1997 until the 28th April 1997. She recovered well and was discharged. She moved to the Malvern area and again relapsed, requiring psychiatric admission between the 22nd September 1997 and 3rd October 1997. She was rapidly re-admitted on the 10th October 1997 and remained an in patient up until 5th January 1998. She was discharged from hospital in January 1998 on Risperidone 6mg twice a day, Lithium Carbonate 800mg at night. She had no further in patient admissions, and no psychotic symptoms since January 1998. She was reviewed in April 2000 by the psychiatry team who were happy with her. She is presently on Zopiclone 7.5mgprn and very occasionally Amisulpride.
I do hope that this is satisfactory."
The Tribunal below commented:-
"Dr Rosewarne was self-evidently not a partner at the Applicant's G.P. Practice and was neither of the G.P.s named by the Applicant."
However, Dr Rosewarne had evidently had access to the records kept at the medical practice of Doctors Payler and Williams and, as the request of 9th May had been addressed to Dr Williams, Dr Rosewarne's reply was, presumably, from someone to whom Dr Williams had been content to delegate the task of reporting.
- On 29th June 2000 the Police wrote to tell Miss Marshall that "based on the information to hand, the Force Medical Officer has indicated that you do not meet the required medical standard for entry into Surrey Police Force as a Fingerprint Recognition Officer.".
- Of the nature of the job in question the Tribunal held:-
"The Respondent organisation operates on a shift work system which is flexible around core hours. Very occasionally (perhaps once or twice a year) a Finger print Recognition Officer will be required to attend a scene of crime out of hours, and flexibility in arranging compensatory time off and re-arrangement of following shifts is made."
- The need for flexibility represented, on the evidence, "no problem". The Tribunal also held that an earlier post which Miss Marshall had held as a Research Assistant for 3 years to October 1997:-
"..... involved exclusive use of chemicals and heat treatments within a laboratory setting and no less dangerous chemicals than those a Fingerprint Recognition Officer would use. The skill and judgment required of the Applicant in her post with the MRC and complexity of task was comparable, if not more complex than of a Fingerprint Recognition Officer."
- Finally on the facts, the Tribunal indicated that it had been referred to medical evidence:-
"..... none of which information was before [the Police] when they reached their decision not to appoint [Miss Marshall] and for this reason the Tribunal do not find it necessary to make findings of fact."
- There then followed, under the heading "Conclusions" a number of passages without which the Appellant's complaints cannot be understood. Thus the Tribunal holds:-
(i) " 39. ... The less favourable treatment was the failure to confirm the Applicant in post and the reason for that failure was Dr Cahill's perception that if the Applicant were to become ill again her performance concentration and judgment might be adversely affected. The Tribunal finds that the Respondents cannot show that the treatment in question is justified. The Tribunal considered whether the reason given for the less favourable treatment can properly be described as both material in the circumstances of the particular case and substantial. The Tribunal find that the Respondent did not obtain suitably qualified and expert medical opinions about the particular circumstances of the Applicant's case in advance of reaching a decision not to appoint her. It was not a properly conducted risk assessment. The Tribunal is differential [sic] to Dr E.M. Cahill's medical qualifications and experience, but find that given the wide spectrum and range of both the type of symptoms and varying degrees of severity of the symptoms associated with bipolar affective disorder no authoritative investigation was made into the effects on the particular individual in what is an extremely complex medical disorder."
(ii) " 40. At the time Dr Cahill made the decision the only information she had about the Applicant before her was the Applicant's own letter of 31 March 2000 and the application form and the job description for the post."
(iii) "41. The Applicant in her letter dealt explicitly with the concern that formed the basis of Dr Cahill's decision not to appoint. The Applicant explained that she became physically ill long before her mental health deteriorated. She also explained that she had been able to successfully complete her research at Cambridge University and produce her Master's Thesis taking time off as appropriate for health reasons, and also described in detail the steps she took to prevent and manage her condition and her vigilance in relation to early warning signs. This information appears to have been ignored by Dr Cahill."
(iv) "41. .... Dr Cahill did in fact commission medical evidence from the Applicant's G.P.. The Tribunal find a number of surprising aspects to this. Firstly that the Applicant had specifically told Claire Williams that it would be more appropriate to obtain medical information from her consultant who had better experience of her condition and would be able to provide a more informed report; and secondly that after having commissioned the report and agreed to pay for a G.P.'s report Dr Cahill acted and made her decision before receiving the report. This demonstrates to the Tribunal a closed mind."
(v) "41. … Also significant is the terms of instructions in the request for a medical report which does not include a request for an assessment of the capability of the Applicant to perform the job. Nothing is said about the requirements of the job - what is being sought is the history and current management of the Applicant's condition. The report duly covered the limited aspects sought from the letter of instruction but was written by a doctor who was clearly not the Applicant's own G.P. nor a named partner in the surgery where the Applicant attended. The report confirmed that the Applicant had had no psychotic symptoms for a period of some two and half years and that the psychiatry team were "happy with her". The report gave no indication as to the possibility of likely relapse, or whether the Applicant would be aware of a downward slide and be able to exempt herself from the workplace before the deterioration of work performance. Again the nature of the request for information in the report does not suggest that Dr Cahill is considering the matter with an open mind in order to reach an informed decision on the basis of reasonably available information."
(vi) "43. The Tribunal have naturally approached the matter cautiously - clearly Dr Cahill is a qualified doctor and none of the Tribunal members are, but it seems to us that had Dr Cahill considered in May 2000 that she had sufficient information from the paperwork alone to make an informed decision, she would have done so without commissioning additional medical evidence from the G.P.. There were then delays in the report being received and Dr Cahill made her decision in the absence of any information from the doctor treating the Applicant and the report itself was not even by the treating doctor or one of the doctors who the Applicant had specified should be approached if there were concerns about the Applicant's fitness for the job."
(vii) "44. Therefore applying the dicta in Jones -v- The Post Office the Tribunal find that the risk assessment was not properly conducted and was not based on the properly formed opinion of suitably qualified doctors and so produced an answer which was not rational. It would not have been hard to find out more: sufficient evidence would have been readily available - perhaps a meeting between Dr Cahill and the Applicant, or even a telephone conversation with her, or with either of the doctors identified by the Applicant, or a report from them, a discussion with Mr Brownlee whom Dr Cahill had not consulted although these were new posts as to the requirements of the job, an enquiry of the Applicant's two referees - yet none of this was undertaken."
(viii) "44. .... Notwithstanding Dr Cahill's medical qualifications and experience she did not consider the circumstances of the particular case. There is not a reasonably strong connection between the employer's reasons and the circumstances of the individual case and it must be recalled that the circumstances of the individual are stressed in the legislation."
- As to adjustment, the Tribunal concluded that they were not satisfied that the duty under section 6 had arisen. There is no cross-appeal as to that.
- Mr Sutton, for the Police, raises a number of issues. Some assert that the Tribunal's inferences from the facts found are illogical, some are more easily seen as allegations of error of law.
- Dealing with that latter category, Mr Sutton argues that the Tribunal's blanket exclusion of medical evidence which had not been before the Police at the point when Miss Marshall was rejected was an error of law. That evidence included the evidence of Dr Lipsedge, M. Phil, FRCP, FRC, Psych, FFOM (Hon), a Consultant at the Maudsley Hospital since 1974, consultant psychiatrist, and senior lecturer at Guys and St Thomas' and Kings NHS Trust, who gave oral evidence to the Tribunal, called by the Police. Dr Lipsedge had a special interest in occupational medicine. He had also previously written to Dr Cahill, but after Miss Marshall's dismissal. That letter was before the Tribunal. Amongst the oral evidence he gave, as recorded in the Chairman's Notes, was:-
"Lithium works because it controls the mood. The Applicant came off lithium in autumn 1999. It puts patients at greater risk of further episodes of manias or depression. There is an increased risk of further episodes of mania or depression. There is an increased risk of psychotic features during the course of episodes of affected [ive?] disorder - delusion is what I mean by psychotic, it indicates a severe form. ..... The fact that she was taking lithium - there was a 70% chance it would have kept her mood stable ..... a relapse can be quite quick - with a tendency to easily develop psychotic symptoms - it puts her in a group of people with poor prognosis ..... [Miss Marshall's letter of 31st March 2000] shews that when the Applicant is unwell then psychologically she has very severe symptoms ..... The Applicant was too vulnerable. She could not carry out her duties reliably. It was sufficient to reach a decision from the letter." (Our emphasis)
- In cross-examination he said:-
"Given the nature of her history, the Applicant is a highly vulnerable person to further episodes."
- To questions by the Tribunal he said:-
"It is re-assuring if a patient takes lithium ..... the fact that the Applicant stopped the lithium is a very important part of the story. If she had been taking lithium I'd have been much more positive - I would not eliminate the risk but a 70% chance of its being effective ..... there is an increasing risk of psychotic episodes as the Applicant gets older [Miss Marshall was then 31 years of age]. The condition will become more malignant as she ages .... I would give her a chance if either she was on lithium or had remained well for 2-3 years. Having read her notes and seen her, I still think it is unacceptably risky. The reluctance to take lithium is very common amongst ... patients. It makes individuals sluggish, put on weight and has implications for thyroid, possible kidney damage and impairs creativity. It is an unpopular drug with patients but it enables people to function reasonably well. It is not a curative drug. The risk of relapse is just as high, there is no spontaneous cure. There is no cure to the chemical imbalance within the brain in cases of this type."
- We are not concerned here with whether there was evidence which countered the evidence of so senior a medical man as Dr Lipsedge, nor with whether there was any other ground affecting its credibility but with the limited issue of whether the Tribunal erred in law in not making findings of fact as to any of it on the specific ground that it had not been before the Police at the point when they rejected Miss Marshall.
- It is a question that requires one to bear in mind what Dr Cahill's evidence in chief had been. It had included that Miss Marshall had given up Lithium, was taking an anti-psychotic drug (amilsulpiride) as required, that she had been hospitalised with the diagnosis of bipolar affective disorder with manic episode, that in view of the recurrence of that disorder Dr Cahill considered her medically unfit for the rôle, that Miss Marshall's performance, concentration and judgment might be adversely affected, that it was possible that some time could elapse before the diagnosis of a relapse might become apparent and that her illness had an unpredictable nature.
- At first glance Dr Lipsedge's evidence, which, to include his letter to Dr Cahill, had included that in a patient with Miss Marshall's history the risk of a further episode was very high indeed if she did not reliably take prophylactic medication, was of relevance. He had quoted the current Professor of Psychiatry at Oxford's textbook "that there was a near-certainty of subsequent recurrence with or without treatment .....". Dr Lipsedge's evidence explained the significance of Miss Marshall coming off lithium, which Dr Cahill had referred to, that relapses could not only occur but could occur quickly, as Dr Cahill had feared, and, importantly, that Miss Marshall's own letter of 31st March 2000 could on its own found a decision as to unsuitability. Dr Cahill was held to have considered that letter before she made her decision and Dr Lipsedge seems to have been saying that Dr Cahill's conclusion would not have been impermissible medically even if based only on that letter. Dr Lipsedge confirmed Dr Cahill's view as to the likelihood of recurrence and as to Miss Marshall's unsuitability in relation to the duties to be required of her, His evidence not only went, firstly, to the credibility of the view that Dr Cahill had formed at the time but, secondly, went to the question of whether, on the information available to Dr Cahill at the point of decision in a highly technical area, a right-minded duly qualified medical person could without error have reasonably concluded as Dr Cahill had. If Dr Lipsedge's evidence had been accepted it would, as it seems to us, have supported a conclusion that Dr Cahill's view was not some medically insupportable frolic of her own (which might have raised doubts as to discrimination and have required explanation) but a view which could without impropriety have been entertained by a qualified medical person on the basis of the information available to her, even if only on Miss Marshall's letter of 31st March.
- That issue, as it seems to us, was one of central relevance. The only ground the Tribunal had for not making findings of fact deriving from Dr Lipsedge's evidence (or the medical evidence countering it) seems to have drawn by the Tribunal from Jones -v- Post Office [2001] IRLR 384 C.A..
- In Jones the employee had been with the employer for some 20 years as a mail delivery driver. He had diabetes and had had a heart attack. He was taken off driving duties. Later it was offered to him that he should be permitted to return to driving but not so as to exceed 2 hours in 24. The employee rejected that offer and claimed under the 1995 Act. The employer relied on "justification". In Jones the Tribunal took it that the decision as to justification was for it, the Tribunal, to decide. It held that the medical evidence available to the employer had been wrong and that a correct appraisal would have concluded that Mr Jones could drive throughout his shifts. The Employment Appeal Tribunal set that decision aside and the Court of Appeal dismissed the appeal. Pill L.J., with whom Kay L.J. and Arden L.J. agreed, emphasised that less favourable treatment in this context can only be justified if it is both material to the circumstances of the particular case and substantial - section 5 (3). The employer relying on section 5 (3) has to satisfy those statutory criteria. Pill L.J. continued:-
"Where a properly conducted risk assessment provides a reason which is on its face both material and substantial, and is not irrational, the Tribunal cannot substitute its own appraisal ...... [the Tribunal] .... does not have the more general power to make its own appraisal of the medical evidence and conclude that the evidence from admittedly competent medical witnesses was incorrect or make its own risk assessment." - paragraph 25.
In paragraphs 26-28 Pill L.J. added, with our emphasis:-
"Consideration of the statutory criteria may also involve an assessment of the employer's decision to the extent of considering whether there was evidence on the basis of which a decision could properly be taken. Thus if no risk assessment was made or a decision was taken otherwise than on the basis of appropriate medical evidence, or was an irrational decision as being beyond the range of responses open to a reasonable decision-maker (a test approved by Sir Thomas Bingham MR in a different context in R -v- Ministry of Defence ex parte Smith [1996] IRLR 100 at 102), the employment tribunal could hold the reason insufficient and the treatment unjustified."
and
"An investigation of the facts by the tribunal will often be required, but it cannot go to the extent of disagreeing with a risk assessment which is properly conducted, based on the properly formed opinion of suitably qualified doctors and produces an answer which is not irrational."
An analogy was then drawn with the "band of reasonable responses" test and Pill L.J. said of Tribunals that:-
"...... they must respect the opinion of the employer, in the one case if it is within the range of reasonable responses and in the other if the reason given is material and substantial."
- In paragraph 41 Arden L.J. added:-
"If credible arguments exist to support the employer's decision, the employment tribunal may not hold that the reason for the discrimination is not 'substantial'. If, however, the employer's reason is outside the band of responses which a reasonable employer might have adopted, the reason would not be substantial. (This test was applied by the Court of Appeal in the different context of unfair dismissal in Post Office -v- Foley [2000] IRLR 827). In short, so far as the second limb of s. 5 (3) of the 1995 Act is concerned, justification is shown provided that the employer's reason is supportable."
- There is, in our judgment, nothing in Jones which barred the Tribunal in our case from making findings of fact on some of the medical evidence obtained after Miss Marshall's rejection. Parts of the evidence were material not as to whether Dr Cahill's assessment of risk was right or wrong in the light of further post-rejection medical inquiry or of other material not before the employer at the time (which we could accept to be inadmissible) but as to whether there was material in Dr Cahill's hands by the point of decision on which a decision such as she made could properly have been made and as to whether it was a decision open to a reasonable decision maker on the material before her. Whereas, in unfair dismissal cases, the Tribunal, as the "Industrial jury", can expect, without evidence on the point, to be familiar with the width of the band of reasonable responses, in a highly technical area such as that in issue in Miss Marshall's case, expert evidence, for and against, including evidence other than from the decision maker and obtained after the decision, will often be desirable or even necessary if the decision maker's credibility and rationality are to be examined. In our judgment the Tribunal erred in law in not making findings as to Dr Lipsedge's evidence.
- That error alone is in our judgment sufficient to require us to set aside the Tribunal's decision. We would not pretend that we are in a position to assess the due impact of the evidence that was before the Tribunal or that the case was so plain that a decision that Miss Marshall's rejection was justified was the only possible one. We will therefore remit the matter as we shall describe below, but, in deference to Mr Sutton's argument, we will add some further concerns that have arisen out of the Tribunal's decision, if only to help in avoiding their recurrence.
- Thus, in its paragraph 40 cited above the Tribunal held that when Dr Cahill made the decision (a date the Tribunal did not specifically identify) the only information she had before her was Miss Marshall's letter of 31st March, her application form and the job description. That was not correct and the Chairman in her notes indicates that it was not correct; Dr Cahill also then had Miss Marshall's medical history form of the 27th April 2000.
- In its paragraph 43 the Tribunal took the view, it seems, that if Dr Cahill had, in May 2000, considered that she already had sufficient information from the paperwork alone to make an informed decision she would have done so without commissioning additional medical evidence from Miss Marshall's G.P.. But, surely, one cannot suppose a person has insufficient material for an informed decision merely from the fact that he or she wishes to obtain more. It is easy enough to imagine a cross-examination as to, for example, arrogance, over-confidence or laziness if Dr Cahill, having been given authority to approach Miss Marshall's medical advisers for information on 27th April, had altogether failed to do so and had thus failed, as it were, to hear the other side.
- We were concerned, too, at the Tribunal's view that the Employer's decision "was not based on the properly formed opinion of suitably qualified doctors and so produced an answer which was not rational". The assessment was made by Dr Cahill, M.D., D.Obst., MRCP, M.Sc (Occ Health), AFOM. She had qualified as a Doctor in 1983. She had worked as a specialist in occupational medicine for over 10 years. From 1994 she had been an Associate Fellow of the Faculty of Occupational Medicine and had in 1990 obtained a Master's Degree in Occupational Health. In her post-graduate training she had spent 6 months attached to a Psychiatric Unit. By the time of the hearing she had become Senior Occupational Physician for the Metropolitan Police Service. It is not clear from the somewhat "rolled up" attack made by the Tribunal whether it was the proper formation of her opinion or her qualifications and their suitability of which the Tribunal was critical but there is a real danger, if Tribunals set too high a requirement for medical advice as to justification, that employers will be deterred from offering jobs because of the expense, delay and difficulty in obtaining the correct experts to report. This case, it has to be remembered, concerned not an employee of long standing, as in Jones, where the employer would have been able to form some view of disability and capability over many years, but a job application where the employer had no information before the application was received.
- Importantly, the Tribunal took the view that Dr Cahill had made her decision to reject Miss Marshall before she received the Rosewarne letter of 20th June. It is true that there is a note signed by Dr Cahill on 4th May stating that Miss Marshall had been considered for the post but had been found unfit but Miss Marshall was not rejected until 29th June and the Rosewarne letter appears to have been endorsed by Dr Cahill on 28th June. Her own oral evidence was that she had taken account of Dr Rosewarne's letter before reaching her decision, which suggests that the note of 4th May was not of a final decision. Her witness statement said that she had taken Dr Rosewarne's letter into account in reaching a decision. That was not some last minute confection; Dr Cahill had said that in correspondence with Miss Marshall on 17th July 2001, before the IT1 was presented. The Tribunal do not say in their Extended Reasons that her evidence was disbelieved, nor that the note of 4th May had represented a final decision. However, understandably but improperly, the Chairman has added to her Notes of Evidence the comment:-
"However, we preferred the evidence of Mr Baker, another of the [Employer's] witnesses at the liability hearing, which contradicted and conflicted with the evidence given by Dr Cahill."
Mr Baker had, according to the Chairman's Notes, had said "the decision was made by Dr Cahill on 8th June 2000" although the nature of the decision is unidentified. Mr Baker's witness statement, speaking of the 8th June, had gone no further than that Dr Cahill had said that Miss Marshall's appointment would be very difficult to justify and that the important duties attendant upon the job on offer could potentially be compromised if she were appointed. He also believed that the Police made a correct decision. The Tribunal made a finding in the Extended Reasons that Dr Cahill made "a decision" by 8th June. Mrs Taylor-Woodward, Personnel Manager for Specialist Operations gave written and oral evidence; her witness statement firmly placed Dr Cahill's ruling that Miss Marshall was not fit for the job on medical grounds as having been after receipt of the Rosewarne letter.
- One should not have to rummage through a Chairman's Notes of Evidence (from the Chairman alone) to light upon the reason for an important finding of fact, one possibly involving disbelief of a central witness on a crucial issue. The Tribunal if minded (as it seems it was) to hold that Dr Cahill or the Police had made a final decision to reject Miss Marshall's application even before she had received the Rosewarne letter, should, firstly, have explained in the Extended Reasons first why they were unimpressed by Dr Cahill's and Mrs Taylor-Woodward's evidence on so important an issue and then, secondly, to have indicated why they felt able to hold as they did despite Miss Marshall's own "pleaded" case being to the contrary. Miss Marshall's IT1, it will be remembered, asserted that the Police's judgment had been "on the basis of a letter from a G.P. who had never met me", which can only be a reference to the Rosewarne letter. The Tribunal erred in law in failing to do either in its Extended Reasons. We add that if a final decision was made by the Police (as opposed to by Dr Cahill) to reject Miss Marshall's application as early as 8th June, practical questions would have arisen as to why the Police were willing to pay for a medical report that was not taken into account and which (on this basis) their medical adviser did not need, why they waited 21 days until the letter of rejection on 29th June and whether it was ever put to Dr Cahill that she or the Police had arrived at a final decision to reject, a decision properly to be attributable not just to her but to the Police, "by 8th June". None of those questions is explored in the Extended Reasons.
- Finally, amongst points that have caused us concern, is the Tribunal's repeated emphasis on the Rosewarne letter not being from a doctor who had treated Miss Marshall and upon Dr Cahill not meeting Miss Marshall. It is, as it seems to us, a technical medical question, the answer to which is far from obvious, as to whether an adequate occupational medicine decision could reasonably have been made in relation to this particular job and applicant by an experienced Occupational Physician, where the issue was Bipolar Affective Disorder, upon either the information Miss Marshall herself had disclosed or the summary of Miss Marshall's medical history derived from her G.P.'s records as given in the Rosewarne letter and without an examination of, or a meeting with, the job applicant. Dr Lipsedge's evidence suggests that a fair view could be arrived at without such an examination or meeting, which is one of the reasons why it was wrong of the Tribunal not to making findings, one way or another, on his evidence. If Dr Lipsedge's view had been upheld then the Tribunal's criticism that the Police had not obtained a suitable medical opinion and that Dr Cahill had not either met Miss Marshall nor taken the view of those who had actually treated her would have been undermined. One does not prove that a reason for a person's treatment is not "material to the circumstances of the particular case and substantial" merely by shewing that it was not as material or as substantial as it could possibly have been.
- By reasons of the error of law we referred to in our paragraph 30 we set aside the Tribunal's decision. The matters we have raised in later paragraphs only add to our view that there should be a remission and to a different Tribunal. Accordingly, having set aside the decision, we remit only the issue of justification (but the whole of that issue) to a different Tribunal. That Tribunal will be able to receive fresh evidence on the issue and, of course, if it chooses, may think it appropriate to have a directions hearing to clarify just what will be in dispute and what evidence is sought to be adduced.
