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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> J v DLA Piper UK LLP [2010] UKEAT 0263_09_1506 (15 June 2010) URL: http://www.bailii.org/uk/cases/UKEAT/2010/0263_09_1506.html Cite as: [2010] ICR 1052, 115 BMLR 107, [2010] IRLR 936, (2010) 115 BMLR 107, [2010] UKEAT 0263_09_1506, [2010] UKEAT 263_9_1506

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APPEARANCES

 

For the Appellant	MR JAMES LADDIE and MS CLAIRE DARWIN (of Counsel) Instructed by: Russell Jones and Walker 324 Gray's Inn Road London WC1X 9DH
For the Respondents	MR DANIEL TATTON-BROWN (of Counsel) Instructed by: Morgan Lewis & Bockius Condor House 5-10 St Paul's Churchyard London EC4M 8AL


 


SUMMARY

DISABILITY DISCRIMINATION – Disability

Job offer to Claimant withdrawn allegedly as a result of her disclosing a history of depression – On a preliminary issue Tribunal holds that at the material time (June 2008) Claimant not suffering from "clinical depression" amounting to a disability within the meaning of the Disability Discrimination Act 1995.

Appeal allowed, and issue remitted, because Tribunal

(a) had wrongly declined to give weight to the evidence of Claimant's GP, on the issues both of impairment and of "deduced effect", because she was not a specialist; and

(b) had made a perverse finding as to whether the Claimant's past depression had amounted to an impairment having a substantial adverse effect on her ability to carry out normal day-to-day activities, which was material both to the question of whether she had an impairment in June 2008 and to the potential application of para. 2 (2) of Schedule 1 of the Act

(paras. 52-57)

Discussion of:

(1) correct approach to issue of "impairment" in cases involving a mental disability following the repeal of para. 1 (1) of Schedule 1 by the Disability Discrimination Act 2005 - Morgan v Staffordshire University [2002] ICR 475 considered; College of Ripon and York St. John v Hobbs [2002] IRLR 185 and McNicol v Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498 held to remain good law – (paras. 35-40 and 43-44)

(2) distinction between "clinical depression" and reactions to stress or other adverse circumstances producing similar symptoms (para. 42)

(3) whether claimant with a history of recurrent depressive episodes can be said to suffer an impairment in the intervals between episodes (para. 45).

Claimant refused permission to advance a point not raised before the Tribunal to the effect that even if she was not in fact disabled at the time of the acts complained of the Respondents perceived her to have been; that discrimination on the basis of such "perceived disability" was contrary to EU law; and that the 1995 Act could be construed so as to give effect to that prohibition, by analogy with EBR Attridge LLP v Coleman [2010] ICR 242 - paras. 60-64.


 


THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

INTRODUCTION

1. The Claimant is qualified as a barrister. From 2004 to 2006 she worked for a government department ("the Department"). While there she suffered an episode of depression and was off work for some four months. In May 2006 she joined a large firm of City solicitors ("the City firm") as a professional support lawyer. While there she suffered a further episode of depression. In mid-2008 she was interviewed for a job with the Respondents, another large firm of solicitors. On 6 June she was offered the job, subject (among other things) to completing a medical questionnaire. Prior to completing the questionnaire she spoke to a manager in the Respondents' HR department and told her about her history of depression. According to her, the manager in question was unsympathetic. She was told that the role was a high-pressure one and that she ought to reconsider whether it was in truth suitable for her: she was also told that if she were appointed she would not be able to do any work from home. A few days later she was contacted by the Respondents and told that a decision had been made to impose a recruitment freeze as a result of the credit crunch and that the offer to her was withdrawn. She believes that the true reason for the withdrawal of the offer was what she had told the HR department about her medical history. On 9 September 2008 she commenced Employment Tribunal proceedings complaining of discrimination contrary to the Disability Discrimination Act 1995.
2. The claim came on for hearing before a Tribunal sitting at London Central chaired by Employment Judge Sigsworth on 25 February 2009, with a three-day listing. Although the Claimant had been represented by solicitors (Russell Jones and Walker) when she presented her claim, she was by now unrepresented and appeared in person. The Respondents were represented by Mr Daniel Tatton-Brown of counsel. Various case management issues had to be addressed on the first day, and it was agreed that the remaining time was insufficient to consider the claim in its entirety and that accordingly the Tribunal should determine only the issue of whether as at the date of the discrimination alleged, i.e. May/June 2008, the Claimant was disabled within the meaning of the Act. The Tribunal heard evidence and submissions on that issue on the second day; and on the afternoon of the third day it announced its decision that the Claimant was not disabled and that her claim was accordingly "struck out and dismissed". (Strictly speaking, it seems to us that this was not a strike-out but the substantive determination of the disability issue; but nothing turns on that.) It appears that fairly full reasons were given orally on that occasion, but the formal Judgment and written Reasons were sent to the parties on 27 March.
3. This is an appeal against that decision. The appeal was originally listed in June 2009 before a tribunal chaired by Cox J, but it was adjourned because there were various case-management disputes outstanding and the time estimate was inadequate. An order was made on that occasion that the Claimant's name be anonymised. Before us the Claimant was represented by Mr James Laddie, and Ms Claire Darwin, with the benefit, as we understand it, of funding from the Equality and Human Rights Commission, which regards the appeal as raising some important issues of disability discrimination law. The Respondents were again represented by Mr Tatton-Brown. We are grateful to all three of them for written and oral submissions of high quality.
4. The Claimant's case on the appeal falls under two heads. First, it is contended that the Tribunal erred in law in its conclusion on the question before it. Secondly, it is contended that that question was not in any event determinative of the claim as a whole because, even if the Claimant was not in fact disabled, if the Respondents withdrew the offer to her because they believed that she was disabled, such discrimination on the ground of perceived disability is contrary to EU law and should be treated as proscribed by the 1995 Act. We will refer to the former way of putting the case as "the conventional case" and to the latter as "the perceived disability case". We consider them separately below, but it is convenient first to set out the relevant statutory provisions and how the claim was pleaded.

THE STATUTORY PROVISIONS

5. Section 4 (1) of the 1995 Act provides (so far as material) as follows:

It is unlawful for an employer to discriminate against a disabled person –

(a) …

(b) …

(c) by refusing to offer, or deliberately not offering, him employment.

6. For the purpose of Part II of the Act (to which section 4 belongs), discrimination is defined in section 3A. This reads (so far as material):

(1) … [A] person discriminates against a disabled person if –

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat other to whom that reason does not or would not apply, and

(b) he cannot show that the treatment in question is justified.

(2)     For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

(3)     Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4)     But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

(6) If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty.

The relationship of sub-sections (1) and (5) is explained in the judgment of this Tribunal in City of Edinburgh Council v Dickson (UKEATS/0038/09), at para. 32. However, as noted at para. 33 of that decision, the difference between the effect of the two sub-sections has been for practical purposes much diminished, if not altogether removed, by the decision of the House of Lords in London Borough of Lewisham v Malcolm [2008] IRLR 700.

7. It will be seen from the terms of both section 3A and section 4 (1) that it is apparently integral to the concept of unlawful discrimination under the 1995 Act that the act complained of should have been suffered by "a disabled person". That term is defined in section 1 of the Act as follows:

(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-time adverse effect on his ability to carry out normal day-to-day activities.

(2) In this Act "disabled person" means a person who has a disability.

As a matter simply of verbal analysis that definition breaks down into two elements – (1) whether the claimant is suffering from an impairment (physical or mental) – "the impairment issue"; and (2) whether that impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities – "the adverse effect issue". We consider below to what extent that verbal distinction reflects a substantive distinction; but, as will appear, it is clearly enshrined in the jurisprudence, and we should observe it in the structure of this judgment.

8. The definition in section 1 is expressed to be "subject to Schedule 1". That Schedule contains a number of glosses or qualifications affecting particular elements in the definition. Those which are material for present purposes are as follows:

(1) Para. 1 relates to the term "impairment". In the Schedule as originally enacted, sub-para. (1) provided that:

"Mental impairment" includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness.

However, that provision was repealed, with effect from 5 December 2005, by the Disability Discrimination Act 2005. In the result, therefore, there is now no statutory gloss on the meaning of "impairment", either generally or in the case of a mental illness. Sub-paras. (2) and (3) empower the Secretary of State to make regulations requiring "prescribed conditions" either to be or not to be treated as amounting to impairments. The Disability Discrimination (Meaning of Disability) Regulations 1996 were made under those powers and exclude various conditions, e.g. certain addictions and personality disorders.

(2) Para. 2 relates to the phrase "long-term … effect". Sub-paras. (1) and (2) read:

(1) The effect of an impairment is a long-term effect if –

(a) it has lasted at least 12 months;

(b) the period for which it lasts is likely to be at least 12 months; or

(c) it is likely to last for the rest of the life of the person affected.

(2) Where an impairment ceases to have an substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if the effect is likely to recur.

(3) Para. 4 is concerned with the phrase "normal day-to-day activities". Sub-para. (1) provides that:

An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following -… .

There follows a list of "capacities"^[1]. The relevant capacity for the purpose of this appeal is (g) – "memory or ability to concentrate, learn or understand".

(4) Para. 6 contains an important gloss on the question of adverse effect. It provides (so far as material) as follows:

(1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.

(2) In sub-para. (1) "measures" includes, in particular, medical treatment and the use of a prosthesis or other aid.

(3) … .

An adverse effect found on the basis of para. 6 has come to be referred to in the jurisprudence as a "deduced effect". We do not find this phrase particularly apt, and counsel were unable, despite some research, to explain its origin; but it is now too well-established to be dispensed with.

(5) Para. 6A provides for persons with "cancer, HIV infection or multiple sclerosis" to be deemed to have a disability.

9. Section 2 of the Act provides for the provisions of Part II to apply also to the case of "past disabilities". The Claimant in her Notice of Appeal sought to rely on this provision (see para. 6.5), but the relevant ground was abandoned by Mr Laddie in the course of the argument before us. No reason was given, though the Claimant might have been in difficulty pursuing an argument based on section 2 since it was not explicitly pleaded (see below).
10. By section 3 (A1) the Secretary of State is empowered to issue "guidance about matters to be taken into account in determining whether a person is a disabled person"; and an employment tribunal is required by sub-sections (3)-(3A) to take into account any such guidance which appears to be relevant in determining that question. The Guidance issued by the Secretary of State which was in force at the relevant time (and currently) was that issued in March 2006: we will refer to its provisions so far as necessary below. (The scope of the issues to which such guidance could relate was originally defined in a rather more circumscribed way; but the present provisions were introduced by the 2005 Act.)

THE CASE AS PLEADED

11. The Claimant's ET1 included complaints under head 6 – discrimination – and head 9 – breach of contract. We are not concerned with the latter on this appeal. As regards discrimination, the ET1 incorporated formal pleaded Grounds of Complaint. At paras. 1-6 these recited the facts, including the making and subsequent withdrawal of the job offer by the Respondents to the Claimant. Para. 7 pleads that the withdrawal of the offer "was based on discriminatory grounds". Para. 8 pleads as follows:

The Claimant is a disabled person under the Disability Discrimination Act 1995 ("DDA"). The condition is long-term and, if left uncontrolled through treatment, has a substantial effect on her ability to carry out day to day activities (i.e. the condition has a more than trivial effect on our client's ability to concentrate), thus amounting to a disability within the meaning of the Disability Discrimination Act 1995.

12. Four points should be made in relation to this pleading:

(1) Strictly speaking, it should have been pleaded not that the Claimant "is" disabled but that she was disabled at the material time. What that time is said to have been is not specified, but the natural reading, in the absence of any reference to section 2, would be that it was meant to be the date of the acts complained of, i.e. May/June 2008; and that is the basis on which the Tribunal and the parties proceeded.

(2) The nature of the condition causing the disability is not explicitly pleaded, but the Claimant had pleaded at para. 3 of the Grounds that she had been diagnosed with "clinical depression"; and it will have been clear that that was the condition alleged.

(3) The particular capacity relied on for the purpose of the averment of a substantial adverse effect on the Claimant's ability to carry out normal day-to-day activities is her ability to concentrate.

(4) The Claimant does not aver that her impairment in fact had at the material time a substantial adverse effect on her ability to carry out normal day-to-day activities but only that it would have done so but for the treatment which she was receiving: in other words, this is pleaded as a "deduced effect" case (see para. 8 (4) above).

13. We need not summarise paras. 9–12 of the Grounds of Complaint. However, in a formal section of the pleading following the numbered paragraphs the Claimant categorises the discrimination alleged as follows:

DISABILITY-RELATED DISCRIMINATION

S. 3A (1)

The Respondent's less favourable treatment of the Claimant was for a reason related to her disability which cannot be justified in the circumstances. In particular:

The Respondent asked the Claimant to re-consider her suitability for a high pressured job;

Advised the Claimant that the Respondent was unlikely to consider her allowing her to work from home occasionally by way of a reasonable adjustment; and

Withdrew the role from the Claimant.

The Respondent treated the Claimant less favourably than he treats or would treat other to whom that reason does not apply and the Respondent cannot justify the treatment.

DIRECT DISCRIMINATION

S. 3A (5) DDA

The Respondent directly discrimination against the Claimant on the ground of her disability. The Respondent treated the Claimant less favourably than he treats or would treat a person without clinical depression whose relevant circumstances, including abilities, are the same as, or not materially different from those of the Claimant. In particular the Claimant will rely upon the following detriments:

The Respondent asked the Claimant to re-consider her suitability for a high pressured job;

Advised the Claimant that the Respondent was unlikely to consider her allowing her to work from home occasionally by way of a reasonable adjustment; and

Withdrew the role from the Claimant.

14. At a later stage the parties agreed a List of Issues. We need not reproduce that here, though we should note that in addition to the pleaded discrimination under section 3A (1) and (5) there was also identified an issue about failure to make reasonable adjustments under section 3A (2).

A. THE CONVENTIONAL CASE

THE NATURE OF THE EVIDENCE BEFORE THE TRIBUNAL

15. The evidence before the Tribunal on the issue of the Claimant's disability consisted of the following:

(1) The Claimant's own evidence in her witness statement and in her oral testimony to the Tribunal. Both the witness statement and an agreed note of the Claimant's oral evidence were before us.

(2) Her GP notes for the period from 2005 to 2008. These were not produced in full until the second day of the hearing, before the Claimant gave evidence.

(3) An extensive bundle of contemporary documents. Most of these were concerned with other aspects of the case; but they included correspondence between the HR Department at the City firm and its occupational health consultants, Rood Lane Ltd. Dr MacLeod, a GP employed by Rood Lane, saw the Claimant on more than one occasion; and a report was also obtained, on Dr MacLeod's recommendation, from a consultant psychiatrist, Dr Brener, who saw the Claimant on 20 May 2008.

(4) Two reports prepared for the purpose of the proceedings:

(a) a report prepared for the Claimant by her GP, Dr Morris, dated 4 December 2008, which exhibited her notes for May and June 2008^[2];

(b) a report obtained by the Respondents from a consultant psychiatrist, Dr Gill, dated 27 January 2009: Dr Gill had not himself seen the Claimant, for reasons into which we need not go, and his views were based only on Dr Morris's report and on the Rood Lane material.

THE FACTS

16. From April 2005 until May 2006, while she was employed at the Department, the Claimant consulted her GP on twelve occasions, at roughly monthly intervals, about what were treated as symptoms of depression. The diagnosis recorded in the notes was of a depressive disorder, recorded at first as "mild to moderate" on the Becks scale but by October 2005 as "moderate". There was some evidence that the depression originated in the breakdown of a relationship. From May 2005 she was prescribed sertraline, an antidepressant: the doses increased from 50mg. to 150mg. over the period (200 mg. being the maximum recommended dose). She saw a psychologist on three occasions but she did not find the sessions helpful. In December 2005 she was certified unfit for work; and she did not return to work, and then only part-time, until late April 2006. During her period off work she began to consult a psychotherapist. The notes (both for this and later periods) show that the Claimant had some other medical problems. In particular, she suffered from atopic conditions and from asthma. She also had a problem with her nasal septum, which led to breathing problems when she was asleep and may have affected the quality of her sleep.
17. Turning to the period of the Claimant's employment with the City firm, the GP notes show that she reported in August 2006 that she was:

Full-time in new job which is going pretty well. Still symptoms of tiredness, [occasionally] low mood and anxiety. Still counselling every 2 – 3 weeks but therapist doesn't sound very positive about continuing and sounds more supportive than anything else.

She was seen again (so far as her depression was concerned) in January and April 2007 and reported on both occasions that there were no problems at work, although she did continue to report some tiredness and occasional low mood and anxiety. She remained on sertraline at a dosage of 100mg.

18. In the second half of 2007 the Claimant's condition deteriorated. Various symptoms characteristic of depression returned. Among other things, her sleep pattern was disturbed, which meant that she was often late in to work. On 5 October she saw Dr MacLeod, who diagnosed moderate depression and gave the following opinion:

I believe that [the claimant] is still suffering symptoms of anxiety and depression which are impairing her function at work and that this is a condition which has been ongoing for the last two and a half years. She was significantly unwell in the six months before she joined [the City firm]

She is currently, I believe, a little under treated. She wishes to self-fund therapy and I have arranged for her to see a therapist who I think will work well with her. We discussed the possibility of increasing her medication but she will discuss this with her GP.

She recommended that the Claimant work reduced hours and only four days a week. After discussion with Dr Morris, the Claimant remained on 100mg. sertraline.

19. The Claimant's condition improved in the New Year. Following a further consultation with Dr MacLeod on 31 January she returned to full-time work in February. Dr MacLeod's letter to the HR department at the City firm dated 5 February referred to her mood being "now much more positive" and included the following opinion:

In my opinion [the Claimant] has done very well and as far as I am able to ascertain from her report of the situation she has achieved a reasonably consistent recovery from her recent depressive illness. Most of her symptoms are now resolved and she is functioning at or close to her normal level.

I have emphasised to her the importance of maintaining medication for a decent period of time to allow consolidation in this improvement. She had been considering stopping in view of the improvement but medical opinions suggest she should continue for 6 months at least to ensure the improvement is maintained.

She was formally discharged by Dr MacLeod, on the basis that no further medical intervention was indicated.

20. In March 2008 the Claimant had three weeks' holiday in Mexico. She was entirely well during that holiday. However, on her return she received an unfavourable annual appraisal. Her mood deteriorated. On 9 April she went back to see Dr Morris, who increased her dose of sertraline to 150mg. On 21 April she saw Dr MacLeod again. Dr MacLeod's letter of 23 April referred to the negative appraisal and the increase in the Claimant's medication. It continued:

She was very clear that she had been feeling much better in December, January and February prior to this feedback and that the reason for the deterioration in her mood state has been that feedback. Negative feedback will affect mood in most people.

In examining her mood state I covered her current symptoms which are largely related to worry and concern about her appraisal and poor sleep to the degree that she avoids going to bed for fear of not being able to sleep. This in turn makes it difficult for her to wake in the morning.

On her recent holiday to Mexico she was able to sleep and to get up reasonably early for activities but felt that this was because she was in a pleasurable and stress free environment.

At the present time [the Claimant] feels that she is fit to attend work and to do so punctually and reliably but she feels that her mental health should be taken into consideration by you in dealing with her situation.

I think it is very difficult to reliably differentiate between a fundamental mental illness and a sense of despondency, de-motivation and anxiety which can be a natural response to negative appraisal feedback. [The Claimant] was comparatively in a good mood state prior to that feedback and that together with her successful recent holiday in Mexico suggests to me that there may be a strong reactive component to her present mood state. That in turn is unlikely to improve until the negative cycle or poor attendance and late attendance is rectified.

Dr MacLeod recommended obtaining a specialist psychiatric opinion and also that the Claimant resume seeing a psychotherapist.

21. In accordance with Dr MacLeod's recommendation, the Claimant saw Dr Brener (as we have already noted) on 20 May 2008. His report set out her history in terms that we need not summarise. As regards her symptoms, he said:

[The Claimant] has no symptoms of OCD, eating disorder or psychosis. She has some biological symptoms of depression. She has difficulty sleeping. She said her mood is worse in the morning. She is tired, she can't concentrate, she is always tearful, she is not suicidal and she says that everything is an effort. She says that she lives in constant "Sunday night syndrome".

He continued:

[The Claimant] made it quite clear to me that the quality of work has been fine just the quantity has been difficult. She enjoys the business development. What she is asking for is at times to come in late and make up the time staying later to work from home occasionally and a positive response if the work is good.

I talked to this lady about different options, therapy of a CBT type approach, learning some tools to cope with what's going on at work. I would suggest someone like Sue Camm or Stefania. We could look at leaving her on the Sertraline or converting her to Citalopram that might be another option that might help reduce some of the anxiety. The way [the Claimant] is feeling at present, I think she wanted me to say that she wasn't well enough to work at present, but I think she needs to stay in the workplace and focus on some of these issues with her therapist.

She has agreed to go away and think about these treatment options and I will be happy to review it later with her.

22. At paras. 12-13 of her witness statement the Claimant gave an account of her symptoms in the early part of 2008. She said:

12. I still however continued to have certain days when I did not feel well enough to go to work and so I would call in sick. I started to sleep badly and felt tired all the time. My only focus was catching up on sleep and I would cancel social engagements after work as I felt too tired, and would not arrange any plans for the weekend.

13. On days when my medical condition was symptomatic I would find it a struggle to concentrate on even the simplest tasks, for example, proof-reading a client bulletin. I tried to manage this by avoiding doing anything technical when I felt foggy. I also suffered from anxiety at the time. Sometimes my anxiety would be so bad that I would find it paralysing and I would end up in tears and not be able to leave the house. Normally I enjoy the interaction of the office or a social situation but on those days I would feel scared of facing people.

23. In his cross-examination of the Claimant Mr Tatton-Brown did not seek to explore that aspect further. However, at the end of the cross-examination the Employment Judge and the lay members asked a number of questions about, as the Judge put it, the "non-work matters" referred to at para. 13 of the witness statement. The salient points emerging from the Claimant's answers can be summarised as follows:

• As regards her social life, the Claimant said that she often cancelled social engagements, feeling too nervous to go out: for example, she might have had tickets to a concert but decided at the last minute not to go. She said that she would "normally find it okay to see one or two friends" but that a much bigger group would cause her great anxiety.

• The Judge asked about her normal activities at home – "shopping, planning your life outside work". The Claimant said that she would "leave things to the last minute and get in a panic - I'd leave domestic chores to lapse". But she said that she was able to look after herself and her flat.

• The Judge noted that in her CV for the job with the Respondents she had said that she had enjoyed reading. She said that during the period in question while she could read a magazine or a newspaper she found it too "daunting" to read a whole book.

• She said that her three-week holiday in Mexico in March 2008 had been on her own. She had travelled about, visiting ruins and so forth. She also referred to a holiday which she had had in Washington and New York in November 2007. She said that during that trip she was "always … very tired": it was not just jetlag.

• One of the lay members picked up a reference in the papers to the Claimant's membership of the committee of a Bar group. The Claimant gave more details about that. She said that she had helped to arrange the 2007 and 2008 Annual conferences, both of which were in continental Europe, and had attended both.

• There was some discussion of evening classes which the Claimant had been taking, particularly in Spanish and Chinese; but it was not clearly established whether she had been taking them in the relevant period.

24. The Claimant was by now unhappy at the City firm. It was for that reason that she applied for a job with the Respondents. She also applied for one or two other jobs, including one with another City firm. At the end of June she gave one month's notice. She has not worked since leaving the City firm at the end of July. She has given up her flat and gone to live with her mother.
25. The Claimant's then current prescription of sertraline expired in July. She did not renew it nor switch to citalopram as Dr Brener had suggested. She did not consult her GP again about depression, although she sought advice about other problems and in particular about a sleeping disorder attributed to snoring. In cross-examination Mr Tatton-Brown put it to her that she was not now suffering from depression. She accepted that her symptoms were less severe but observed that her day-to-day activities were now very different from when she had been working in a City law firm.

THE EXPERT EVIDENCE

26. The various letters and reports referred to above are plainly relevant to the question whether the Claimant was suffering from a disability at the relevant time, and that of Dr Brener is potentially particularly important both because he is a consultant psychiatrist and because it deals with the Claimant's condition in the specific period with which we are concerned. But they do not directly address the material issue. The only reports specifically doing so were those of Dr Morris and Dr Gill.
27. Dr Morris proceeded by reference to four questions which the Claimant had asked her to address. Under the first – "diagnosis" – she very briefly summarised the history of the Claimant's treatment from 2005 and referred to the fact that there had been an initial diagnosis of mild to moderate depression. She did not as such address the question of whether that remained the position in 2008, but she reverted to that in answer to the Claimant's fourth question (see below). As to the second question, "how this would affect your day to day activities", she said:

Depression is known to have an adverse effect on memory, cognitive ability and concentration. I would expect that depression requiring treatment with both an antidepressant and psychological therapy would have an adverse effect on anybody's day to day activities.

Thirdly, the Claimant had "asked me to deduce the effects of your condition if you were not receiving any treatment." As to that, she said:

It's clear to me that the symptoms [the Claimant] would suffer from without treatment would be much worse.

The fourth question "asked me to be specific with regard to your condition in May and June of 2008". She said:

I saw [the Claimant] specifically twice during that period. I discussed with her at that stage issues around taking time off for symptoms of depression. We discussed trying to encourage her employers to be flexible in terms of her working pattern. Please find enclosed a copy of both consultations from that period.

Dr Morris's report is distinctly summary and not quite explicit on the key points. Nevertheless, taking her answers together, it seems reasonably clear that she intended to express the opinion that the Claimant was in June 2008 suffering from a depression which had a substantial adverse effect on her ability to carry out normal day-to-day activities – and which (though if that reading is correct this point is unnecessary) would have had a much more substantial effect but for the treatment which she was receiving.

28. So far as Dr Gill's report is concerned, we should reproduce the "Comment" section in full. This reads:

As I understand it, whether someone is disabled under the Disability Discrimination Act is finally a legal not a medical decision. However, I can say that the medical evidence I have seen thus far does not point clearly one way or the other.

Overall, it seems possible that this is a case where what are in fact employment problems have been as it were medicalised and the diagnosis of some form of mild depression has been reached.

Certainly, I am not aware of any mental illness which produces lateness as a specific symptom.^[3]

Nevertheless, this may still constitute a mental impairment because of the weak test in the Act, where, as I understand it, the condition does not have to be "clinically well recognised".

It sounds as though the problems, whatever they were, have been "long-term".

In respect of day to day activities, the general practitioner says that memory or ability to learn, concentrate or understand is affected adversely, although the very letter in which she does so seems to be in reply to a letter from the Claimant which would imply good intellectual functioning.

In summary therefore it would be likely that the debate about disability in this case would be about the strength of the medical evidence she has provided of adverse effect on normal everyday activities. My view would be that this evidence is weak from the psychiatric point of view.

THE TRIBUNAL'S REASONS

29. Para. 1 of the Reasons is essentially introductory. It contains a summary of the nature of the evidence called, and concludes with the observation that "there is no conclusive expert evidence on the Claimant's condition, either from Dr Gill or from Dr Brener": it appears, therefore, that the Tribunal did not treat the evidence of Dr Morris as "expert" (as to this, see further paras. 30 and 52 below).
30. At para. 2 the Tribunal made its findings of fact. Insofar as they simply reflect the undisputed medical evidence and the Claimant's own evidence we need not set them out here, since we have already summarised them above. We should, however, note that the Tribunal said this about the question of "deduced effect" (see para. 8 (5) above):

The only evidence that we have of deduced effect … is the evidence of one line of Dr Morris's report in November 2008 and expanded slightly in December 2008, where she says that the symptoms that the Claimant would suffer from without treatment would be much worse. We remind ourselves that Dr Morris is a GP and not a specialist in any sense in psychiatric matters, and also she is in fact giving a view in November/December 2008 when the Claimant had not been taking Sertraline for about 4 or 5 months.

31. At para. 3 the Tribunal summarised the relevant law. We need not set out the whole passage, but we should record the following points:

(1) It referred in general terms to section 1 and Schedule 1 of the Act and to the Guidance. It identified and summarised the relevant paragraph of Schedule 1, including para. 6.

(2) It referred to the decision of this Tribunal in Goodwin v Patent Office [1999] ICR 302 and specifically to the observation of Morison P. in that case (at p. 309E) that:

The focus of attention required by the Act of 1995 is on the things that the applicant either cannot do or can only do with difficulty, rather than on the things that the person can do.

We should also refer to a passage at p. 308 A-D, in which Morison P identified four "conditions" which the tribunal was required to consider, as follows:

(1) The impairment condition. Does the applicant have an impairment which is either mental or physical?

(2) The adverse effect condition. Does the impairment affect the applicant's ability to carry out normal day-to-day activities in one of the respects set out in paragraph 4(1) of Schedule 1 to the Act, and does it have an adverse effect?

(3) The substantial condition. Is the adverse effect (upon the applicant's ability) substantial?

(4) The long-term condition. Is the adverse effect (upon the applicant's ability) long-term?

He continued:

Frequently, there will be a complete overlap between conditions (3) and (4) but it will be as well to bear all four of them in mind. Tribunals may find it helpful to address each of the questions but at the same time be aware of the risk that disaggregation should not take one's eye off the whole picture.

(3) It referred to the decision of this Tribunal in Morgan v Staffordshire University [2002] ICR 475, which concerned a claim of mental impairment, as authority for the proposition that "vague references to stress, anxiety and depression are unlikely to be sufficient".

(4) It referred to the decision of the Court of Appeal in Woodrup v London Borough of Southwark [2003] IRLR 111, which it said established that in a "deduced effect" case "clear medical evidence would be expected, not just the Applicant's own testimony".

32. The Tribunal's conclusions are set out in para. 4 of the Reasons, which we should quote in full:

Having regard to our findings of fact, and applying the appropriate law, and taking into account the parties' submissions, we have reached the following conclusions:

4.1 The first matter we have to decide is whether the Claimant has established that she is suffering from a mental impairment at the material time, which is June 2008. We have Dr MacLeod's contemporaneous or near contemporaneous evidence for February and April 2008 which we have found particularly helpful. As at February 2008, most of the Claimant's symptoms had resolved and she was functioning at or close to her normal level, and she was discharged by Dr MacLeod. However, although there were continuing problems when Dr MacLeod saw her again in April 2008, it would appear that it was the appraisal that had caused the problems, and Dr MacLeod could not differentiate reliably or found it very difficult to do so between some sort of impairment, such as a depressive illness, and just generally a sense of despondency, demotivation and anxiety, which was a natural response to that negative appraisal. That it is a difficulty we find generally with this case. The Claimant's symptoms of extreme tiredness, anxiety because of work difficulty, getting up in the morning, not wanting to socialise with larger groups – are these reliable and consistent symptoms of clinical depression or, as Dr Brener puts it, Sunday night syndrome, or, as Dr Gill puts it, possible medicalisation of employment problems? We have to decide whether the Claimant has established, and the onus is on her, that she had at the relevant time, if not clinical depression some form of mental impairment, not just stress or anxiety which is not likely to be enough. We note that the Claimant was fit to work at the material time, according to Dr Brener, and could indulge in a wide range of other activities, travelling, studying, living on her own etc. We accept, of course, that the focus is what she could not do rather than what she could do. There is very little evidence really about what she could not do, save difficulty in getting up in the morning, socialising with large groups (except apparently large groups of lawyers), some tearfulness, reading books or watching whole films. We have had to ask ourselves whether this is sufficient to establish that she suffered an impairment within the meaning of the Act. We have come to the conclusion that the Claimant has not established that she had, at the material time, a sufficiently well-defined impairment to qualify for protection under the statute. That could be the end of the matter. However, if we are wrong about this we are going to reach conclusions about other matters as well.

4.2 We turn to substantial adverse effect on normal day to day activities, assuming for this purpose that the Claimant has established a mental impairment. We feel we have to look at all the activities, including work-related activities, in the round. The fact is that the Claimant could do her work so far as the quality of it was concerned, even if she had some difficulty with her attendance. In other words she could in fact concentrate on difficult work because she could do it; and she could concentrate on language studies, she could travel, she could arrange and attend conferences, all requiring those aspects of normal day to day activities that we particularly have to look at; namely, memory, concentration, and the ability to learn and understand. There is minimal evidence that there was any substantial adverse effect on any of this, or of what the Claimant could not do. If the Claimant struggled with technical documents, and really there is not much evidence that she did, then this was not a normal day to day activity, according to the guidance that we have read. We note further that the Claimant was able to and did make job applications to [the other City firm], and indeed to the Respondent, so she was able to go through with this; and she was successful with the Respondent, up to withdrawal of the offer, so she must have performed well both in her application form and presumably at interview. So far as mobility is concerned, if that is in fact something that we have to look at, the Claimant is not saying that she could not leave the house. She sometimes had difficulty getting moving in the morning, but that is another matter. Usually she was able to function normally; she was able to go shopping, look after herself, go to work, travel etc. We do not find there was any substantial adverse impact with respect to mobility. So far as deduced effect is concerned, and of course we note that the case was pleaded as a deduced effect case, we conclude the Claimant did not adduce any clear and cogent evidence of this, as is required following the case of Woodrup, as we have already referred to in our findings of fact. We are therefore quite satisfied that the Claimant has not established that there was a substantial, in other words more than minor or trivial, adverse effect on her ability to carry out normal day to day activities.

4.3 So far as long term effect is concerned, it is not really necessary for us to deal with this. However, we would say that we are not persuaded that, even in 2005, the Claimant has established that she had an impairment that had a substantial adverse effect on her ability to carry out normal day to day activities. If we had been, we would have concluded that depression is long term because it is likely to recur.

33. It may be helpful to spell out the approach which we understand the Tribunal to have been taking in that passage:

(1) It was evidently seeking to address systematically the four questions identified by Morison P in Goodwin (see para. 31 (2) above), although it has – unobjectionably – elided his questions (2) and (3).

(2) As regards Morison P's question (1) – impairment – it held in para. 4.1 that the Claimant had not shown that she was suffering from clinical depression, or any other impairment, as at June 2008.

(3) In reaching that decision it made a distinction between, on the one hand, "clinical depression", which would be an impairment, and on the other hand, "as Dr Brener puts it, Sunday night syndrome, or as Dr Gill puts it, a possible medicalisation of employment problems", which would not. That "non-impairment" alternative is not very well expressed^[4]; but in our view it is adequately clear that what the Tribunal meant was a situation where the Claimant was suffering symptoms of low mood – in its phrase, "despondency, demotivation and anxiety" - not because of "clinical depression" but simply as a reaction to problems at work. We return to this distinction below.

(4) It seems, though this is not explicit and is arguably contradicted by the observation in para. 4.3, that the Tribunal accepted that the Claimant was, or at least may have been, suffering from a clinical depression prior to February 2008. But if so it was satisfied that she had recovered from that depression by that date - hence the importance attached to Dr MacLeod's letter of 5 February 2008 discharging her (see para. 19 above) – and that her symptoms thereafter were not the result of depression. The previous history was thus, in effect, irrelevant.

(5) At para. 4.2 it considered by way of alternative Morison P's questions (2) and (3) and held that even if the Claimant was suffering from an impairment it did not have a substantial adverse effect on her ability to carry out normal day-to-day activities. It dealt with the question of "deduced effect" – see para. 8 (4) above – by cross-referring to the passage quoted at para. 30 above, which questions the weight to be given to Dr Morris' evidence.

(6) At para. 4.3 it briefly addressed the question of long-term effect – Morison P's question (4) – but avowedly on the basis that it did not arise. The reasoning is somewhat telescoped but it can be spelt out as follows. If – contrary to the Tribunal's previous findings – the Claimant was suffering in June 2008 from an impairment which had a substantial adverse effect on her ability to carry out normal day-to-day activities, the essential question was whether that condition should be treated as going back into the period 2005-2007, which would necessarily make it "long-term" because, as the Tribunal put it, "depression … is likely to recur". The Tribunal held that it should not be so treated, because it was not satisfied that at any time during that period any impairment that she may have suffered had a sufficiently substantial adverse effect.

THE APPEAL

Introduction

34. We have not found it useful to address the Claimant's grounds of appeal precisely in the way they are pleaded. We will proceed under the following headings:

(1) The correct approach to the impairment issue

(2) "Clinical depression"

(3) The sustainability of the Tribunal's findings and reasoning

(4) Conclusion.

(1) The Correct Approach to the Impairment Issue

35. At para. 6.1.5 of the Notice of Appeal the Claimant contends as follows:

… [This] appeal raises a point of importance relating to the meaning of "impairment", particularly since the repeal of Sch. 1, s. 1(1). It is submitted that the effect of the repeal of Sch. 1, s. 1(1), is to remove any requirement that a claimant prove the existence of an impairment will be deduced from whether or not there is a substantial adverse effect on the claimant's ability to carry out normal day-to-day activities. If there is such an effect, then the claimant will necessarily have an impairment.

36. Mr Laddie developed that contention in his skeleton argument and his oral submissions before us. It was his case that the answer to the impairment question will in practice necessarily follow from the answer to the adverse effect question and that in most cases it was unnecessary, and in some cases dangerous, for tribunals to consider the two questions separately and consecutively. Subject to some exceptions, the correct approach for a tribunal was to consider first whether the claimant's ability to carry out normal day-to-day activities was substantially adversely affected on a long-term basis; and if it found that that was the case it would automatically follow (subject to those exceptions) that he or she suffered from an impairment. The exceptions which he identified were:

(a) where the impairment is excluded under the 1996 Regulations (see para. 8 (1) above);

(b) where the case falls under para. 6A of Schedule 1 (see para. 8 (5) above); and

(c) where it is necessary to identify the underlying impairment in order to determine the issue of long-term effect.

Mr Laddie accepted that in many or most cases asking the two questions separately may create no actual difficulty, because identifying the impairment will generally be uncontroversial and any issue is likely to relate to the nature and extent of the adverse effect. But in other cases – and specifically in some cases of mental impairment – addressing the impairment question first carries the risk of the tribunal getting bogged down in difficult medical, or indeed metaphysical, questions where clear answers may simply be unavailable: precise diagnosis and/or aetiology are notoriously difficult in cases of mental ill-health or incapacity. Provided there is an impairment, recognised in a common-sense way by the effects which it has produced, such questions simply do not need to be answered. As he and Ms Darwin put it in their skeleton argument:

… by elevating impairment into a separate hurdle for a claimant to jump … a tribunal runs the risk of requiring the claimant to prove too much.

37. Mr Laddie acknowledged that his submissions were on the face of it hard to reconcile with earlier authorities which clearly treat the impairment and adverse effect issues as separate: see not only Goodwin (above) but the decisions of this Tribunal (Lindsay P presiding) in College of Ripon and York St. John v Hobbs [2002] IRLR 185 and of the Court of Appeal in McNicol v Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498, which contain full discussions of the correct approach to the impairment issue as a self-contained question – see paras. 31-32 in the Ripon College case (p. 188) and paras. 18-19 in McNicol (pp. 1503-4). But he pointed out that those cases preceded the repeal of para. 1 (1) of Schedule 1 (see para. 8 (1) above): that was the only provision which gave the concept of "impairment" any real function, and now that it was gone it need not be separately considered.
38. We can go much of the way with Mr Laddie's submission. There are indeed sometimes cases where identifying the nature of the impairment from which a claimant may be suffering involves difficult medical questions; and we agree that in many or most such cases it will be easier – and is entirely legitimate – for the tribunal to park that issue and to ask first whether the claimant's ability to carry out normal day-to-day activities has been adversely affected – one might indeed say "impaired" – on a long-term basis. If it finds that it has been, it will in many or most cases follow as a matter of common-sense inference that the claimant is suffering from a condition which has produced that adverse effect - in other words, an "impairment". If that inference can be drawn, it will be unnecessary for the tribunal to try to resolve difficult medical issues of the kind to which we have referred. This approach is entirely consistent with the pragmatic approach to the impairment issue propounded by Lindsay P in the Ripon College case and endorsed by Mummery LJ in McNicol (loc. cit.). It is also in our view consistent with the Guidance. Paras. A3-A4 of the Guidance read as follows:

A3.     The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects.

A4.     Whether a person is disabled for the purposes of the Act is generally determined by reference to the effect that an impairment has on that person's ability to carry out normal day-to-day activities….

Paras. A7-A8 read:

A7. It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment. The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa.

A8. It is not necessary to consider how an impairment is caused … What it is important to consider is the effect of an impairment not its cause – provided that it is not an excluded condition.

39. But we do not think that it follows – if Mr Laddie really intended to go that far – that the impairment issue can simply be ignored except in the special cases which he identified. The distinction between impairment and effect is built into the structure of the Act, not only in section 1 (1) itself but in the way in which its provisions are glossed in Schedule 1. It is also reflected in the structure of the Guidance and in the analysis adopted in the various leading cases to which we have referred, which have continued to be applied following the repeal of para. 1 (1) of Schedule 1 (see, e.g., the decision of this Tribunal (Langstaff J. presiding) in Ministry of Defence v Hay [2008] ICR 1247 – see paras. 36-38 (at pp. 1255-6)). Mr Laddie's recognition that there will be exceptional cases where the impairment issue will still have to be considered separately reduces what would otherwise be the attractive elegance of his submission. Both this Tribunal and the Court of Appeal have repeatedly enjoined on tribunals the importance of following a systematic analysis based closely on the statutory words, and experience shows that when this injunction is not followed the result is all too often confusion and error.
40. Accordingly in our view the correct approach is as follows:

(1) It remains good practice in every case for a tribunal to state conclusions separately on the questions of impairment and of adverse effect (and, in the case of adverse effect, the questions of substantiality and long-term effect arising under it) as recommended in Goodwin.

(2) However, in reaching those conclusions the tribunal should not proceed by rigid consecutive stages. Specifically, in cases where there may be a dispute about the existence of an impairment it will make sense, for the reasons given in para. 38 above, to start by making findings about whether the claimant's ability to carry out normal day-to-day activities is adversely affected (on a long-term basis), and to consider the question of impairment in the light of those findings.

(3) These observations are not intended to, and we do not believe that they do, conflict with the terms of the Guidance or with the authorities referred to above. In particular, we do not regard the Ripon College and McNicol cases as having been undermined by the repeal of para. 1 (1) of Schedule 1, and they remain authoritative save insofar as they specifically refer to the repealed provisions.

(2) "Clinical Depression"

41. The facts of the present case make it necessary to make two general points about depression as an impairment. We do so with some caution since the medical evidence before the Tribunal did not contain any general discussion of depression. We have to rely primarily on the inferences that can be drawn from such medical evidence as there is, together with the Guidance and the case-law and the general knowledge acquired from our own experience of depressive illness in the field of employment law and practice. However, we have considered it legitimate to consider also the Report of the Joint Committee on the Disability Discrimination Bill (i.e. what became the 2005 Act). Mr Laddie sent us paras. 71-79 of the Report following the hearing (see n. 6 below); but the whole of paras. 65-99, and some of the materials referred to in it (in particular the introductory section of the draft NICE guideline on depression), which are available online, seemed to us to be useful. We should make it clear that we have referred to these materials as background only and have not relied on them in deciding any disputed matter on this appeal.
42. The first point concerns the legitimacy in principle of the kind of distinction made by the Tribunal, as summarised at para. 33 (3) above, between two states of affairs which can produce broadly similar symptoms: those symptoms can be described in various ways, but we will be sufficiently understood if we refer to them as symptoms of low mood and anxiety. The first state of affairs is a mental illness – or, if you prefer, a mental condition – which is conveniently referred to as "clinical depression" and is unquestionably an impairment within the meaning of the Act. The second is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work) or – if the jargon may be forgiven – "adverse life events".^[5] We dare say that the value or validity of that distinction could be questioned at the level of deep theory; and even if it is accepted in principle the borderline between the two states of affairs is bound often to be very blurred in practice. But we are equally clear that it reflects a distinction which is routinely made by clinicians – it is implicit or explicit in the evidence of each of Dr Brener, Dr MacLeod and Dr Gill in this case – and which should in principle be recognised for the purposes of the Act. We accept that it may be a difficult distinction to apply in a particular case; and the difficulty can be exacerbated by the looseness with which some medical professionals, and most laypeople, use such terms as "depression" ("clinical" or otherwise), "anxiety" and "stress". Fortunately, however, we would not expect those difficulties often to cause a real problem in the context of a claim under the Act. This is because of the long-term effect requirement. If, as we recommend at para. 40 (2) above, a tribunal starts by considering the adverse effect issue and finds that the claimant's ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for twelve months or more, it would in most cases be likely to conclude that he or she was indeed suffering "clinical depression" rather than simply a reaction to adverse circumstances: it is a common-sense observation that such reactions are not normally long-lived.
43. We should make it clear that the distinction discussed in the preceding paragraph does not involve the restoration of the requirement previously imposed by para. 1 (1) of Schedule 1 that the claimant prove that he or she is suffering from a "clinically well-recognised illness"; and we reject the contention pleaded at para. 6.1.4 of the Notice of Appeal that the Tribunal erred in law by applying such a distinction. The impact of the repeal of para. 1 (1) is in cases where it is evident from a claimant's symptoms that he or she is suffering from a mental impairment of some kind but where the nature of the impairment is hard to identify or classify. Under the unamended Act, proving the nature of the impairment and that it was "clinically well-recognised" might involve parties and tribunals in difficult, and correspondingly expensive, issues of diagnosis and of psychiatric theory. It is understandable that Parliament should have taken the view that the exercise required by para. 1 (1) was unnecessary and constituted an obstacle to justice.^[6] But the problem arose from the requirement for the precise identification and classification of the impairment. The distinction applied in the present case relates to whether there is an impairment at all, which is a different matter.
44. We should say something in this context about the decision in Morgan which was referred to by the Tribunal: see para. 31 (3) above. In that case this Tribunal (Lindsay P presiding) gave full and careful guidance on the approach to be taken by employment tribunals in considering cases of mental impairment. However, the decision was concerned with the law prior to the repeal of para. 1 (1) of Schedule 1, and inevitably much of the discussion in it is concerned with how the existence of a clinically well-recognised illness can be established. It thus cannot now be relied on as a guide to the law as it now stands. As noted above, the Tribunal in the present case referred to an observation by Lindsay P., at para. 20 (5) (p. 484 E-F), that "such loose terms … as 'anxiety', 'stress' or 'depression'" would not "suffice". The Tribunal's summary fails to reflect the context of that observation, which was specifically directed at the need to prove a clinically well-recognised illness; and the reference was to that extent inappropriate. However, it is fair to say that a similar, though more general, point seems to us to be valid in the context of the Act in its current form. As we have observed above, both laymen and some health professionals too often use loosely terms such as those referred to by Lindsay P., and the reminder remains appropriate that in considering both the adverse effect issue and the impairment issue tribunals may have to look behind the labels.
45. The second general point that we need to make about depression as a disability concerns the question of recurrence. The Tribunal said in the final sentence of para. 4.3 of the Reasons that "depression is long term because it is likely to recur". We are not clear on what evidence that statement was based and it needs to be examined with some care. We proceed by considering two extreme examples. Take first the case of a woman who suffers a depressive illness in her early 20s. The illness lasts for over a year and has a serious impact on her ability to carry out normal day-to-day activities. But she makes a complete recovery and is thereafter symptom-free for thirty years, at which point she suffers a second depressive illness. It appears to be the case that statistically the fact of the earlier illness means that she was more likely than a person without such a history to suffer a further episode of depression. Nevertheless it does not seem to us that for that reason alone she can be said during the intervening thirty years to be suffering from a mental impairment (presumably to be characterised as "vulnerability to depression" or something of that kind): rather the model is of someone who has suffered two distinct illnesses, or impairments, at different points in her life. Our second example is of a woman who over, say, a five-year period suffers several short episodes of depression which have a substantial adverse impact on her ability to carry out normal day-to-day activities but who between those episodes is symptom-free and does not require treatment. In such a case it may be appropriate, though the question is one on which medical evidence would be required, to regard her as suffering from a mental impairment throughout the period in question, i.e. even between episodes: the model would be not of a number of discrete illnesses but of a single condition producing recurrent symptomatic episodes.^[7] In the former case, the issue of whether the second illness amounted to a disability would fall to be answered simply by reference to the degree and duration of the adverse effects of that illness. But in the latter, the woman could, if the medical evidence supported the diagnosis of a condition producing recurrent symptomatic episodes, properly claim to be disabled throughout the period: even if each individual episode were too short for its adverse effects (including "deduced effects") to be regarded as "long-term" she could invoke para. 2 (2) of Schedule 1 (provided she could show that the effects were "likely" to recur) – see para. 8 (2) above.

(3) The Sustainability of the Tribunal's Findings and Reasoning

The Period at the Department: 2005 – May 2006

46. In our view the facts set out at para. 16 above establish beyond question that between, broadly, mid-2005 and mid-2006 the Claimant did indeed suffer a mental impairment and that for part of that period at least that impairment substantially adversely affected her ability to carry out normal day-to-day activities. Without repeating every point, she was unequivocally diagnosed as suffering from moderate depression, she was treated with anti-depressants and referred to both a psychologist and a psychotherapist, and – most importantly - she was unfit for work for four months. There is nothing to suggest that this was not a true "clinical" depression, as opposed to simply a reaction to adverse circumstances. (We also observe that the note of Mr. Tatton-Brown's closing submissions records him as saying:

I invite the Tribunal not to be distracted by … evidence at earlier period – Certainly 2005 – C suffering from depression - Question – was she suffering in June 2008

That is not, we accept, a concession that the Claimant was suffering in 2005/6 from an impairment which satisfied the adverse effects condition; but it reflects a realistic acceptance that on the evidence her condition in 2005 was substantially worse than it was in 2008.)

47. It follows that we accept the contention at para. 6.3 of the Notice of Appeal that the Tribunal's finding in the second sentence of para. 4.3 of the Reasons was perverse. We come to that conclusion with the less reluctance because the Tribunal, treating this as very much a fallback issue, gave no reasons for its conclusion.

The Period at the City firm: up to mid-2008

48. As appears from para. 17, although some symptoms persisted in the period to mid-2007, and the Claimant continued to take sertraline, they were at a much reduced level and did not affect her ability to work.
49. It seems clear from the evidence referred to at para. 18 that the Claimant suffered a mental impairment – or, it may be, a further mental impairment – during the second half of 2007: Dr MacLeod unequivocally diagnosed moderate depression. Although detailed evidence is lacking, it also seems pretty likely, given that her hours at work were reduced, that that impairment substantially affected her ability to carry out normal day-to-day activities. We need not, however, decide for present purposes whether she was suffering from a disability during this period: that would depend on the questions of likelihood of recurrence and, perhaps, deduced effect considered at paras. 56-57 below.
50. What, however, it is important to appreciate is that the evidence before the Tribunal suggested that the Claimant's condition greatly improved at the beginning of 2008. The key document is Dr McLeod's letter of 5 February 2008, quoted at para. 19 above. That is written in positive terms and records that the Claimant had "achieved a reasonably consistent recovery from her recent depressive illness". She was formally discharged; and although she remained on medication that was explicitly on a precautionary basis only. The Tribunal describes that letter at para. 4.1 of the Reasons as "particularly helpful". It also, of course, had the evidence that the Claimant had undertaken a three-week holiday in March, travelling on her own, and had felt very well during it. In our view, whether or not the Claimant should have been regarded as disabled for all or part of the preceding period, the Tribunal was entitled to regard her, as it plainly did, as (subject to the question of recurrence) not suffering from depression in the later part of this period.

April – June 2008

51. This is of course the crucial period. There is no doubt that the Claimant again developed symptoms of low mood and despondency. The question is what caused those symptoms. The Tribunal believed that they were simply a reaction to the poor appraisal report that she received on her return from holiday – i.e., applying the distinction discussed above, that they were not the result of "clinical depression". We have already held that distinction to be legitimate in principle; but the Tribunal's application of it on the facts here may at first sight seem surprising. Given that the Claimant had a recent history of depression, it might at first sight be natural to assume that the symptoms that she suffered from April 2008 onwards represented a further depressive illness – or a recurrence of that earlier illness - even if triggered by the appraisal. But on a careful consideration of the evidence the picture appears less clear-cut. In particular:

(a) The Claimant had, on the Tribunal's findings, recovered from that previous illness. That did not of course mean that she could not suffer a further similar illness; but it makes the natural assumption referred to above less straightforward.

(b) The fresh symptoms were very clearly triggered by a specific adverse event – namely the unfavourable assessment. Again, that does not mean that they might not constitute, or evidence, a clinical depression; but an adverse appraisal is, as Dr MacLeod said, something which would be liable to produce a reaction of despondency and anxiety even in the absence of any history of depression.

(c) Neither Dr MacLeod (who had readily diagnosed depression in 2007) nor Dr Brener made an unequivocal diagnosis of depression at the time. Dr MacLeod discussed explicitly the possibility that the Claimant's current symptoms had "a strong reactive component": see para. 20 above. It is true that Dr Brener's report (para. 21) refers to "some biological symptoms of depression" and suggests treatment with (different) anti-depressants; but it falls short of a clear diagnosis.

(d) It is noteworthy that the Claimant herself sought no treatment for depression after 16 June and stopped taking anti-depressants shortly afterwards. She explained that by saying that the stresses on her diminished when she stopped work, but that explanation is by no means unequivocally helpful to her on this point.

(e) Dr Gill thought it questionable whether she was suffering from depression.

In those circumstances it is impossible to say that the Tribunal's conclusion was perverse or, therefore, for us to substitute a decision that the Claimant was suffering from an impairment in June 2008.

52. But that is not the end of the story. It remains to consider whether in reaching the conclusion that it did the Tribunal took into account all relevant factors. We do not believe that it did. We are struck by the fact that nowhere in para. 4.1 of the Reasons does the Tribunal make any reference to the evidence of Dr Morris (see para. 27 above). Although her report is not as explicit as one would like, it is, as we have said, clear that Dr Morris intended to convey that the Claimant was indeed suffering from clinical depression in May and June 2008 and that that was a continuation or recurrence of the condition which had produced her symptoms in 2005/6 and 2007. It seems clear that the failure to mention Dr Morris's report was not accidental. As noted at paras. 29 and 30 above, the Tribunal did not apparently regard her evidence as "expert". In our view it was wrong not to do so. A GP is fully qualified to express an opinion on whether a patient is suffering from depression, and on any associated questions arising under the 1995 Act: depression is a condition very often encountered in general practice. No doubt his or her evidence would, other things being equal, have less weight than that of a specialist, and in difficult cases the opinion of a specialist may be valuable; but that does not mean that a GP's evidence can be ignored if the evidence of a specialist is not available or is inconclusive. We cannot be confident that if the Tribunal had taken into account the evidence of Dr Morris it would necessarily have reached the same view. She was the Claimant's own doctor, who saw her monthly over the key period, recording the diagnosis on each occasion as "depressive disorder". None of the evidence of the other doctors unequivocally contradicted her opinion: indeed Dr Brener's might be thought to support it. Although Dr Gill's report strikes a cautiously sceptical note, he had not seen the Claimant.
53. We are also concerned about the potential impact on the Tribunal's reasoning of its error – as we have held it to be – about the Claimant's condition in 2005-7, and in particular in 2005: see paras. 46-47 above. If it had accepted, as we believe that it should have, that during that earlier period she had suffered a disabling condition it might have been slower to accept that she was by mid-2008 no longer suffering from that condition. We do not, again, say that it was bound to have reached a different conclusion; but we cannot be confident that its error about the earlier period did not affect its thinking as regards the position in June 2008.
54. It follows that we do not believe that the Tribunal's decision on the issue of impairment can stand. That being so, we need not consider a further submission by Mr Laddie, based on the reference to a "sufficiently well-defined impairment" at the end of para. 4.2 of the Reasons and on its citation of Morgan, that the Tribunal had continued, if only unconsciously, to apply the "clinically well-recognised condition" test from the repealed para. 1 (1) of Schedule 1: these are the points taken at paras. 6.1-3 of the Notice of Appeal. We would only say that we doubt if we would have found that these features vitiated the Tribunal's reasoning: although the reference to Morgan could be criticised for the reasons given at para. 44 above, and the language of "well-defined impairment" was loose, we do not think that either point clearly demonstrates that the Tribunal misunderstood the applicable law.
55. Our conclusion on para. 4.1 of the Reasons would not matter if the alternative reasoning in para. 4.2 – that is, that any impairment did not substantially affect the Claimant's ability to carry out normal day-to-day activities – was sustainable. But in our view that conclusion is also flawed. We will accept for the present, while noting Mr Laddie's submission referred to at para. 58 below, that the Tribunal was entitled to find that the Claimant's impairment did not in fact, in June 2008, have a sufficiently substantial adverse effect on her ability to carry out normal day-to-day activities. But there remain two difficulties with its reasoning.
56. First, we have held that the Tribunal should have found not only that the Claimant was suffering from an impairment in 2005-6 but that that impairment had a substantial adverse effect on her ability to carry out normal day-to-day activities: see para. 46 above. The effect of para. 2 (2) of Schedule1 is that that adverse effect is to be treated as continuing thereafter if it is "likely to recur"^[8]. Strictly, the Tribunal's observation at para. 4.3 of the Reasons that "depression is likely to recur" might be said to decide that point in the Claimant's favour. But the observation is made very much in passing and is, for the reasons given at para. 45 above, over-simple. What the Tribunal needed to do was to consider whether the adverse effects suffered in 2005/6 (and potentially in 2007) were "likely to recur". If so, the Claimant was to be treated as suffering from those effects in June 2008 and as having done so for more than twelve months. That is not an assessment which we feel that we can safely make for ourselves.
57. Secondly, there is the question of deduced effect. This was, as we have noted, the only way the case was pleaded, though it seems that the parties subsequently proceeded on the basis that "actual" adverse effects were also relied on. The Tribunal dealt with that issue by saying simply that "the Claimant did not adduce any clear or cogent evidence of this", referring to its observations about Dr Morris's evidence which we have set out at para. 30 above. If, as we think, the Tribunal intended simply to discount Dr Morris's evidence because she was not a psychiatrist, that approach is wrong, for the reasons already given: we accept the contention to this effect at para. 6.4 of the Notice of Appeal. But it may have meant only that her evidence was too brief to be "clear or cogent". If so, the point is debatable. Strictly speaking, the question that needed to be addressed was whether, on the hypothesis that the Claimant's ability to carry out normal day-to-day activities was not, as at June 2008, substantially affected, there would have been such an effect but for her treatment. Since Dr Morris did not accept that hypothesis, it is not surprising that she did not directly answer the question, saying only that without treatment the Claimant's condition would be "much worse". In view of our decision in the previous paragraph we need not decide the point, though we are inclined to think that the report can just about be read as supporting a "deduced effect" case. It is, even if so read, extremely brief, but there is nothing particularly surprising in the proposition that a person diagnosed as suffering from depression who is taking a high dose of anti-depressants would suffer a serious effect on her ability to carry out normal day-to-day activities if treatment were stopped: the proposition could of course be challenged, but in the absence of such challenge – there being none in Dr Gill's report - it is unclear what elaboration was required. Nor do we understand the relevance of the Tribunal's observation that Dr Morris's report was written in November/December 2008: it was clearly referring back to events at the material time.
58. We therefore do not believe that the Tribunal's alternative finding in para. 4.2 can be sustained. Again, this means that we need not consider an alternative submission advanced by Mr Laddie (and pleaded at para. 6.2 of the Notice of Appeal). He submitted that in making its assessment of the Claimant's ability to carry out normal day-to-day activities the Tribunal concentrated too much on what the Claimant was able to do and not enough on what she could not do (cf. the observation in Goodwin that we quote at para. 31 (2) above). He focused in particular on the questioning by the Tribunal which we have summarised at para. 23 above, much of the result of which found its way into the Reasons. We do not think that this criticism is fair. The ultimate question is no doubt always whether a particular capacity is substantially affected; and it is thus immaterial that other capacities may be wholly unimpaired. But in many cases, including this, considering what the claimant is still able to do, in relation to the relevant capacity, is simply a part of the exercise of assessing the extent to which that capacity is impaired.

(4) Conclusion

59. It follows that, subject to the impact of the perceived disability case which we consider below, the issue of disability has to be remitted to the Employment Tribunal.

(B) THE PERCEIVED DISABILITY CASE

60. The perceived disability case can be summarised as follows:

(1) The persons responsible for the pleaded acts complained of (see para. 13 above) believed that the Claimant was disabled and acted on that ground. (This of course is a factual contention which has not yet been adjudicated.)

(2) To subject an employee (or potential employee) to a detriment on that ground is prohibited by EU Council Directive 2000/78/EC (the so-called "Framework Directive"), which proscribes, among other things, discrimination "on the grounds of … disability" (see art. 1). Although the Directive does not explicitly extend to cases of perceived disability – that is, cases where the putative victim is not in fact disabled but the putative discriminator acts on the basis that he is – it can be inferred that such discrimination is covered, not only from the language of art. 1 but also from the reasoning of the European Court of Justice in Coleman v Attridge Law [2008] ICR 1128, which was concerned with the analogous case of "associative discrimination".

(3) Although on its face that prohibition cannot be given effect to in domestic law because the 1995 Act confers rights only on "disabled persons" – see section 4, quoted at para. 5 above - the statute is capable of being construed, taking the broad approach endorsed by the House of Lords in Ghaidan v Godin-Mendoza [2004] 2 AC 557, so as to dispense with that requirement. Again, the Claimant relies on the analogy with the case of associative discrimination: see EBR Attridge LLP v Coleman [2010] ICR 242.

61. That case faces a serious preliminary difficulty. As will appear from our summary of the ET1 at paras. 11-13 above, it was not raised in the pleadings (which were, as we have noted, professionally drafted); nor did it appear in the List of Issues. It was not argued before the Tribunal. The practice in this Tribunal about raising new points of law is peculiarly strict: see, Jones v Burdett Coutts School [1998] IRLR 521. Mr Laddie submitted that this was one of those rare cases where a new point should nevertheless be permitted. Before considering that submission it will be useful to make one or two general points about the perceived disability case.
62. The starting-point is that in our view the second step in the case as summarised above could not be adopted without a reference to the European Court of Justice. While we see the analogy with the case of associative discrimination, we do not regard it as self-evidently correct. The concept of "perceived disability" presents issues different from those presented by the question whether a person (either a claimant or a person with whom he or she is "associated") is in fact disabled. What the putative discriminator perceives will not always be clearly identifiable as "disability". If the perceived disability is, say, blindness, there may be no problem: a blind person is necessarily disabled. But many physical or mental conditions which may attract adverse treatment do not necessarily amount to disabilities, either because they are not necessarily sufficiently serious or because they are not necessarily long-term. If a manager discriminates against an employee because he believes her to have a broken leg, or because he believes her to be "depressed", the question whether the effects of the perceived injury, or of the perceived depression, are likely to last more or less than twelve months may never enter his thinking, consciously or unconsciously (nor indeed, in the case of perceived "depression", may it be clear what he understands by the term). In such a case, on what basis can he be said to be discriminating "on the ground of" the employee's – perceived – disability ? We do not say that the question is unanswerable, but we do say that it is not so clear that we could proceed without a reference.
63. Mr Laddie invited us, if that was our view, to make a reference at this stage. However, even if we allowed the point to be taken, we would not be prepared to do so. In the first place, it may never be necessary to resolve the issue of perceived discrimination in this case at all: if, on the remitted hearing which we have directed, the Claimant is found to have been in fact disabled at the relevant time the question of perceived disability becomes redundant. It is true that a reference to the European Court of Justice might (we are not sure) be rather cheaper than a remitted hearing in the Employment Tribunal, but it would certainly take longer, and there would still be the need for a hearing on the third step identified at para. 60 (and indeed possible appeals). Secondly, the whole issue may be academic: it is not yet established whether the Respondents in fact acted on the alleged ground at all. Thirdly, and related to the second point, we think it would be positively undesirable for the Court to be asked to consider a referred question on the issue of perceived discrimination on the basis of assumed facts: among other things, the questions canvassed in para. 62 above mean that the Court should have the benefit of careful and thorough findings (so far as the evidence permits) about precisely what was going on inside the heads of the alleged discriminators.
64. In those circumstances we can see no good reason for, exceptionally, allowing the perceived discrimination case to be raised in the context of this appeal. It will be open to the Claimant, if she wishes, to apply for permission to amend to raise the case in the Employment Tribunal. (She may also wish to consider whether to seek to raise a case by reference to section 2 of the 1995 Act – which, as we have said, was raised in this appeal though not ultimately pursued.) We express no view as to whether any such application should be granted.

CONCLUSION

65. We accordingly allow the appeal and remit the disability issue to the Employment Tribunal. We do not believe that it would be right for that issue to be determined by the same tribunal: without in any way doubting the Tribunal's professionalism, in circumstances where an important element in its reasoning has been held by us to be perverse, the Claimant would reasonably find it difficult to be confident that it could approach the issues again with a fresh mind.
66. No doubt a case management discussion will now be fixed to consider directions for the remitted claim (including any application for permission to amend that may be made, as floated at para. 64 above). It may be helpful if we express the clear view that it would be very unsatisfactory if the parties were constrained to rely, at the hearing of the remitted issue, on the evidence already lodged. It will be apparent from what we have said above that both the Claimant's witness statement and the expert evidence called by both sides left a good deal to be desired; and the Tribunal will almost certainly welcome more explicit help on, at least, the issues of recurrence, as discussed at para. 45 above, and deduced effect. We would also suggest that the Tribunal consider whether it makes sense again to hear the disability issue as a preliminary issue. Although it will obviously take more time to cover also the issue of whether the Respondents did in fact act as the Claimant alleges, and on the grounds alleged, that issue is fairly narrow and the additional time taken to resolve it is unlikely to be very great. The case for hearing all issues (or in any event all liability issues) together will be stronger still if the perceived discrimination case is permitted to be advanced, since, as we have observed above, any reference to the ECJ ought not to be on the basis of assumed facts.
67. Finally, while the fresh Tribunal will inevitably have to be referred to this judgment in so far as it discusses the relevant law, we should make it clear that its task will be to apply the law to the evidence which it hears. Although we have found it necessary to express some views on the facts, as appears from para. 51 above we do not regard this as a case where the outcome on the issue of disability is necessarily clear: if that had been so, we would not have found it necessary to remit.
68. We regret the time taken to produce this decision, particularly in the light of the earlier adjournment. It reflects partly the general pressure of work in this Tribunal but partly also the detailed nature of the issues falling for decision.

Note 1    This term does not appear in the Schedule, but it is used in the Secretary of State’s Guidance to which we refer below.    [Back]

Note 2    We should mention, because the Tribunal refers to it in a passage which we quote below, that there were in fact two versions of Dr Morris’s report, the earlier being from November 2008: the differences are of no significance for our purposes.    [Back]

Note 3    We are bound to say that this comment has a snide tone which we hope was unintended. It appears from the Rood Lane material that depression can cause disturbance of sleep patterns, which may make it difficult for a patient to get up in the morning.     [Back]

Note 4    “Sunday night syndrome” was not Dr Brener’s term but his quotation of something said by the Claimant. It is not in fact a phrase with which we are familiar, but we take it to refer to a dread of having to return to work – typically experienced at the end of the week-end, but which the Claimant said that she now felt all the time. On that basis it is not really apt as a description of the alternative explanation for the Claimant’s symptoms: it describes the symptom but says nothing about the cause.     [Back]

Note 5    But NB that “clinical” depression may also be triggered by adverse circumstances or events, so that the distinction can not be neatly characterised as being between cases where the symptoms can be shown to be caused/triggered by adverse circumstances or events and cases where they cannot.    [Back]

Note 6    As noted above, we were sent subsequent to the hearing the Report of the Joint Committee on the bill which became the Disability Discrimination Act 2005. Paras. 71-75 consider the proposed repeal of para. 1 (1). The Committee summarises a number of submissions made to it. Although various points are made, the main thrust of the case for repeal is indeed that question of whether a mental impairment constituted a “clinically well-recognised illness” too often involved disagreement between psychiatric experts, particularly in controversial areas such as autistic spectrum disorder, and that the increased costs and uncertainty thereby generated were a disincentive to genuinely disabled persons bringing claims. The Committee thought that the focus should be on “what effect the condition is having on the person …, not to find a clinically well-recognised name for the condition” (para. 79).    [Back]

Note 7    It appears from the Report of the Committee and the evidence referred to in it that psychiatrists recognise in principle the existence of a condition producing recurrent episodes of this kind but that there may be controversy as to questions of aetiology and classification; and inevitably diagnosis in particular cases may be difficult.     [Back]

Note 8    It would seem, though the point was not in issue before us, that the construction of “likely” adopted by the House of Lords in Boyle v SCA Packaging Ltd [2009] ICR 1056 in considering para. 6 (1) of Schedule 1 would apply equally to para. 2 (2).    [Back]