Appeal No. UKEAT/0081/08/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 July 2008

Before
THE HONOURABLE MR JUSTICE BEAN
MR J C SHRIGLEY
MS K BILGAN

MR D MAHON	APPELLANT

ACCUREAD LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR M SUTTON
(Representative)

MR D N MAHON
(The Appellant in Person)	
For the Respondent	MISS L BONE
(of Counsel)
Instructed by:
Messrs Employment Law in Action Ltd
PO Box 1276
Penn
Buckinghamshire HP10 8WE

SUMMARY
DISABILITY DISCRIMINATION:  Disability
PRACTICE AND PROCEDURE:  Bias, misconduct and procedural irregularity

Where a claimant had been medically examined by a jointly instructed expert who credited his symptoms, and who had not been ordered to attend the hearing, it was unfair for the claimant to be cross-examined on the basis that he was exaggerating his symptoms.

THE HONOURABLE MR JUSTICE BEAN
Introduction
1.	The Claimant, Mr Mahon, appeals from a decision of an Employment Tribunal at Reading, promulgated on 23 November 2007, following an oral hearing on 30 October 2007 before a chairman, Mr R Byrne, and two lay members, at which the Claimant appeared in person and the Respondents were represented, as they were before us, by Miss Lucy Bone of counsel.

The facts
2.	There had been a number of case management discussions and orders in the case, the number being caused apparently by difficulties in obtaining expert evidence.  At one of these, the decision was taken (sensibly, in our view) that the Tribunal should first consider whether the Claimant had a disability within the definition set out in section 1.1 of the Disability Discrimination Act 1995.  If the Tribunal were to find in the Claimant’s favour, they would go on at a subsequent and longer hearing to decide whether the employers had failed in their duty to make reasonable adjustments.  If, as in the event happened, they found against the Claimant on the issue of whether he was disabled, the case would proceed no further.

The Claimant’s case
3.	The claim had been presented on 18 August 2006.  The relevant period for the purposes of deciding disability had been defined in case management orders as beginning in September 2000 (at least on some issues; 2004 on others) and ending in all cases on the date of termination of the Claimant’s employment, which was 21 June 2006.

4.	On 19 June 2007, Mr Byrne (sitting alone) had made case management orders which included the following at paragraph 4.1:
“The parties agree that they will jointly instruct Mr Sorab Lam, Emeritus Consultant Orthopaedic Surgeon to prepare a report as to whether the Claimant at the relevant time had a disability within the meaning of Section 1(1) of the Act.
4.2 The Respondent is to ensure that:- 
4.2.1 all the Claimant’s general practitioner records; and 
4.2.2 all hospital records relevant to the physical impairment alleged are supplied to Mr Lam, together with the agreed letter of instruction.
4.5  The Respondent is to advise the Tribunal and the Claimant by 3rd August 2007 if it is conceded by the Respondent the Claimant was at the relevant time(s) disabled within the meaning of the Act.”

5.	There was, as there so often is, a degree of slippage.  Mr Lam did not supply the medical report until 11 September 2007.  He was asked some questions in a letter signed by both parties and replied to them in an addendum on 5 October 2007.  The conclusions of Mr Lam’s main report under the heading “Opinion and Prognosis” cover four pages, and we will not set them all out.  He did not attempt to answer directly what is traditionally called “the ultimate question” which was for the Tribunal, but his conclusions were broadly favourable to the Claimant.

6.	We note that at paragraph 7 one of the questions was:
“Please state to what extent you are relying on what you have been told by the claimant, and whether that is consistent with your clinical findings.  If you are not relying on what you are told by the claimant, please explain the basis of your findings.  Answer: What I am told by the patient and my clinical findings are consistent with his symptoms.”

The Respondent’s case
7.	The Claimant was a meter reader.  Ms Bone told us that if a meter reader employed by the Respondents was engaged on what is variously called bulk work, cyclic work or house to house work, he or she is expected to carry out 200 to 300 meter readings per day.  This is because the process of going to all the houses or a large proportion of the houses in the same street and taking a meter reading is a very quick one, as we are aware from personal experience.  By contrast, there is also what is described as non-bulk or non‑cyclic work, which involves an employee of the Respondents going, often by car, between more widely scattered customers, perhaps to take readings from those whose premises were not available to be visited on previous occasions.

8.	With that interpolation, we return to Mr Lam’s report and paragraph 10 of the opinion and prognosis:
“At the Relevant Time was the claimant capable of performing the work for which he was employed, and if so how long after the Relevant Time was he likely to remain capable of doing so?  Answer: In my opinion the claimant was NOT capable of undertaking the work for which he was employed if it involved 200‑ 300 meter readings per day, driving, climbing, bending etc. in my opinion he is likely to remain incapable of so doing permanently.  The only possibility of him doing something remotely resembling his work previously would be if his hours of work were reduced to approximately 4-5 a day and the amount of meter readings to approximately 30-40 per day.  These are only personal estimates.”  

9.	The issue of how many meter readings per day the Claimant was capable of doing had been mentioned in the case management order of 19 June 2007, to which we have already referred.  The learned Chairman noted at paragraph 1.2 the Claimant’s case that until June 2004, he had been on what he described as non‑bulk work, in respect of which he had considerable control over the allocation of his time and the provision of breaks.  Following his return to work in May or June 2004 and thereafter, he was required to carry out bulk work.  When doing that, he was expected to cover some 200 to 300 appointments a day, in contrast with the non‑bulk or non‑cyclic work, during which he would be required to cover only some 25 to 60 appointments per day.  He complained that the performance levels he was expected to achieve did not take into account his alleged disability and were not altered to take account of it.

10.	At the hearing on 30 October 2007, the Respondents cross‑examined the Claimant and in doing so, put it to him and subsequently argued that he had exaggerated his symptoms, both in what he said to Mr Lam, and in what he said to the Tribunal.  They also prayed in aid a written report of a physiotherapist, Ms Julie Ross, whom they had commissioned in their capacity as the Claimant’s employers to carry out what was described as a functional capacity evaluation test on 31 May 2005.  They argued, in effect, that Mr Lam had been misled, because what the Claimant told him was exaggerated.  He could only report on the basis of the exaggerated symptoms reported to him by the Claimant and that therefore, as Ms Bone put it to us his report though not to be “ripped up and thrown away”, had been substantially discredited.

Discussions and conclusions
11.	Neither Mr Lam nor Ms Ross was called as a witness.  Ms Bone tells us, and we accept, that the Tribunal bundle (a copy of which had been sent to the Claimant in advance of the hearing) included a report from Ms Ross, but apart from that, and the fact that some supplementary questions had been asked of Mr Lam, there was nothing to put the Claimant on notice that a full scale attack was to be launched on the conclusions of Mr Lam’s report.

12.	The Tribunal were of course not bound by the findings of the independent and jointly instructed expert, but if they were to be either demolished or substantially discredited, then the Claimant, in all fairness, should have been put on notice and given the opportunity of seeking an order that Mr Lam attend the Tribunal for cross‑examination.

13.	It is interesting to note that Mr Lam was not the only independent person who had formed a favourable view of the Claimant’s credibility, and a pessimistic view of his symptoms.  He had appeared, again in person, before a Social Security Appeal Tribunal, consisting in the usual way of a chairman and a medically qualified member, who following a hearing on 15 February 2007, issued a decision allowing the Claimant’s appeal against a decision of the Department for Work & Pensions that he had failed the Personal Capability Assessment, because he was awarded only a low score on the issue of whether back troubles prevented him from rising from sitting to standing and other such matters.  The Claimant was specifically described in that Statement of Reasons as being a witness of truth and accuracy.  The Appeal Tribunal disagreed with the observations of a doctor who had seen the Appellant for 25 minutes and considered his problems to be minor.  The Tribunal found that the Appellant suffered from chronic back pain, sometimes could not rise from sitting to standing without holding on to something; could not walk up and down a flight of 12 stairs without holding on, and could not sit comfortably for more than 30 minutes without having to move from the chair.

14.	As we have said, the Tribunal were not bound by this decision, but it is not in dispute that it was among the documents available to them.  It is very surprising that they did not refer to it, even if only to explain why they disagreed with it, and all the more so because they were rejecting to such a considerable extent the findings of Dr Lam.

15.	The difficulties with the Tribunal’s judgment do not end there.  At three points in the judgment, they give their observation of what they saw the Claimant do or what they observed he had done before then.  At paragraph 8, they say this:
“He complained [this is a reference to his statement to Dr Lam in September 2007] that, ‘very often cannot shave or clean teeth properly as cannot stand at the mirror/sink as it hurts back as I cannot lean on anything for support whilst using both hands to shave’.  He had shaved on the day of the Tribunal hearing.”

16.	In paragraph 14, they say this:
“He said he has difficulty putting shoes and socks on but accepted that he was wearing lace up shoes at the Tribunal and had put them on himself that morning.”

17.	Finally this, at paragraph 10:
“He said in his statement that he has difficulty sitting at his computer for long periods and that doing so became painful after approximately 10-15 minutes.  However before the Tribunal he said that he can sit at his computer for 40-45 minutes. ... The Tribunal observed that he sat without apparent discomfort when giving his evidence from 12.05pm until 1.15pm.”

18.	These passages cause us concern for two reasons.  Firstly, the question before the Tribunal was not whether the Claimant was disabled at the date of hearing, that is 30 October 2007, but whether he had been disabled within the meaning of the Act for all or at least some of the relevant period, that is from September 2000 to June 2006.  It is now clear law, following the decision of the Court of Appeal in McDougall v Richmond Adult Community College [2008] ICR 431 that whether an employer had committed an act of disability discrimination has to be judged on the basis of the evidence available at the time, not by reference to subsequent events.

19.	Secondly, if as Ms Bone submitted to us, the question of what they saw the Claimant do was admissible not on the issue of whether he had been disabled between 2000 and 2006, but on the credibility of the Claimant in what he reported to Mr Lam, and in particular, whether he was exaggerating his symptoms, the Tribunal had to be extremely careful about using their own observations as laymen to contradict the conclusions of a jointly instructed expert. In particular, if they considered the fact that the Claimant had shaved and had laced up his own shoes affected his credibility, that should have been put to him fairly and squarely, and the conclusions recorded.  As Mr Sutton points out in his skeleton argument on behalf of the Appellant, litigants before courts and tribunals very often do make a particular effort to look smart.  So far as the shaving and shoes were concerned, we do not know how long either of those activities had taken him on the day of the Tribunal hearing nor what difficulty was involved in them.  So far as sitting in one place for one hour ten minutes is concerned, it may well be that the Claimant sensibly dosed himself with painkillers so that he could sit at the Tribunal hearing without experiencing significant pain, or it may be that he was enduring pain stoically.  We simply do not know, but we think it was unfair of the Tribunal to attach significance in those circumstances to their observations of the Claimant on the day.

20.	The final respect in which we find the Tribunal’s decision difficult to understand is one of substantive evidence, rather than due process.  It goes to the question of the number of meter readings which he was obliged to carry out per day.  At paragraphs 25 and 26, under the heading “Ability to Lift, Carry or Otherwise Move Everyday Objects” the Tribunal say this:
“Mr Lam’s report is unhelpful in relation to lifting, carrying and moving because it states there would be a definite limitation which of course is in reference to the future and it does not relate back to the past.  However it then goes on to say that ‘I would have thought given all the details I have read, his maximum meter reading capability would be no more than around 40-50 meter readings per day’.  In terms of mobility, lifting, carrying and moving that is a full working day and represents a substantial amount of physical activity which Dr Lam clearly considered the Claimant was able to undertake as at the date of his examination on 11 September 2007.  
The Claimant’s physical impairment has had an adverse effect on his ability to perform day to day tasks, particularly those within the heading of mobility and lifting, carrying and moving during the period from 2000 until June 2006.  Consideration of whether the evidence shows that the adverse impact of the physical impairment on the Claimant’s ability to perform day to day tasks, in particular mobility and lifting, carrying and moving is substantial or not is finely balanced.  The onus is on the Claimant to show a substantial adverse effect on a balance of probabilities.  The Tribunal have carefully considered his evidence given at the Hearing and also the contemporaneous medical evidence, in particular the physiotherapist’s report of 31 May 2005.  Overall the Tribunal do not find that the Claimant has shown on a balance of probabilities that the adverse effect on his ability to perform normal day to day task is substantial.”

21.	With respect to the Tribunal, the conclusion that even if the Claimant’s maximum meter reading capability was restricted to around 40 to 50 meter readings a day, that was a full working day in terms of mobility, lifting, carrying and movement is simply untenable.

22.	For these reasons, in our unanimous view, the Tribunal’s judgment cannot stand.  The appeal must be allowed, the decision of the Employment Tribunal set aside, the case remitted to a freshly constituted Employment Tribunal at Reading to proceed as before to determine whether the Claimant, during the relevant period, was disabled within the meaning of the Act, and if the answer is yes, to make arrangements for a further hearing on the question of reasonable adjustments.