Appeal No. EAT/1429/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 March 2001

Before
MR RECORDER BURKE QC
MRS D M PALMER
MR G H WRIGHT MBE

MS A AITKEN	APPELLANT

NORTHUMBERLAND COUNTY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR GOLDBERG
(of Counsel)
Instructed by:
Messrs McCarron & Smallcombe
Solicitors 
1 Beach Road
South Shields
Tyne & Wear
NE33 2QA	

MR RECORDER BURKE QC

1	This is the preliminary hearing of an appeal by Ms Aitken against the rejection by the Employment Tribunal, sitting at Newcastle, and chaired by Mr Morris, promulgated with Extended Reasons on 9 October 2000, of her complaint of disability discrimination against her ex-employers, Northumberland County Council.  

2	The Tribunal decided, after a two day hearing, that Ms Aitken was not disabled within the meaning of Section 1 of the Disability Discrimination Act 1995.  

3	The background can be shortly described:  Ms Aitken was employed by the employers from June 1997 as a residential social worker at a closed unit for young people with behavioural difficulties.  In December 1997 she was assaulted by a resident.  It was not in dispute, that as a result, she suffered an acute stress related reaction and post traumatic stress disorder.  She was off work for a long time.  

4	In the autumn of 1998, she was thought by her GP and the Occupational Health Physician advising the employers to be fit to return to work, but not as a residential social worker in an enclosed unit.  She was not given alternative work, and was eventually dismissed, on capability grounds, on 31 January 1999.  In addition to her disability discrimination claim, she also complained of unfair dismissal and breach of contract, but those claims were not before the Tribunal whose decision is now the subject of the present appeal; and we do not know what the ultimate result of those claims has been.  

5	The issue addressed by the Tribunal on two days in September 2000 was whether Ms Aitken was disabled under the 1995 Act during the period up to the date of her dismissal, 31 January 1999; the acts of discrimination relied upon being a failure to make adjustments between her return to work in the autumn of 1998 and her dismissal, and the dismissal itself.  

6	The Tribunal decided that, although Ms Aitken was suffering from a continuing psychiatric illness, it was not such as to have a substantial and long term adverse effect on her ability to carry out normal day to day activities.  The Tribunal does not, in express terms, identify what was the clinically well recognised illness from which she was suffering, for the purposes of paragraph 1(1) of Schedule 1 of the 1995 Act; but it is probable that it was not in dispute that that illness was a specific isolated phobia, referred to in paragraph 8 of the Tribunal’s Decision.  

7	Paragraph 4(1) of Schedule 1 to the 1995 Act 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”
 and there then follows, under heads (a) to (h), a list of the normal day to day activities, where if there is a limited ability to carry them out, may qualify for the purposes of the establishment of an impairment.  The Tribunal referred to that list in paragraph 13 of its Decision and said, correctly, that that list was an exhaustive list.  It also correctly identified that there were two items from that list which were in issue in the case, namely:
“(g) memory or ability to concentrate, learn or understand; or
  (h) perception of the risk of physical danger.”

8	The Tribunal considered the evidence in relation to those items, both one might think of some little importance in the case of a person working as a residential social worker with behaviourally disturbed young people.  It concluded that in neither case was there impairment which substantially affected the ability of Ms Aitken to carry them out.  Its conclusion in relation to item (g) and in relation to item (h) was, of course, a conclusion of fact, which can only be attacked in this Employment Appeal Tribunal on familiar principles.  

9	In the admirably succinct amended Notice of Appeal, and in the admirably succinct Skeleton which Mr Goldberg has put together, accompanied by the equally succinct submissions which he has put before us today, Mr Goldberg on behalf of Ms Aitken, takes two points.   Those points are, to some extent, linked.  

10	Firstly, it is submitted that it was part of Ms Aitken’s case that her mental ability, and in particular her memory and ability to concentrate, learn or understand, were affected by sleeplessness, which sleeplessness itself derived from her psychiatric illness; and that the Tribunal, in its Decision, has omitted any reference to sleeplessness or its effects, and has thus erred in law.  

11	The second submission is that in considering whether Ms Aitken was impaired substantially, in terms of items (g) and (h) on the list in paragraph 4 of the Schedule, the Tribunal appears to have considered only events which occurred after the dismissal, and symptoms which manifested themselves after the dismissal, although, it has to be said, the Tribunal had earlier in its Decision, at paragraph 5, directed itself correctly as to the period which was relevant for the purposes of the issue or issues which was or were before it.  

12	So far as the first submission is concerned, the difficulty which confronts it is that sleeplessness is not one of the list of items in paragraph 4 of the Schedule, and as Mr Goldberg frankly recognises, it can only be material insofar as it may create a substantive adverse effect in respect of one or more of the items which is or are listed in the Schedule.  In this case, Mr Goldberg accepts, it would only be relevant insofar as it went to establish impairment under 
“(g) memory or ability to concentrate, learn or understand”

There is no doubt that the Tribunal did consider whether the evidence established a substantial impairment under (g).  It is not suggested that there was no evidence to support the Tribunal’s finding.  

13	Whether the symptoms that were described by Ms Aitken stemmed from sleeplessness or not, in our judgment, is immaterial.  What the Tribunal had to consider was what those symptoms were and whether there were sufficient symptoms, for the purposes of the law, to amount to an impairment and a substantial impairment, as defined.  

14	The Tribunal did ask itself that question; it answered it in the negative; and we see no basis on which that finding can properly be attacked.  We should point out, furthermore, that it is not correct to say that the Tribunal did not refer in any way to symptoms arising from sleeplessness.  In paragraph 11 of its Decision, the Tribunal expressly refers to Ms Aitken’s evidence that:
“On bad days she was tired and lethargic,……. and had little concentration and was not interested in anything.”

15	Incidentally, and this is relevant to the second point, to which we will come in a moment, that passage appears to refer to a period prior to the date of dismissal.  Sleeplessness, of itself, is not specifically referred to; but tiredness and lethargy are; and, in our judgment, that is plainly sufficient.  It is not suggested that there was any specific evidence about specific episodes or specific occasions as opposed to the generality described in that sentence which the Tribunal should have taken into account, but failed to take into account.  

16	As to the second point, while it seems to us that that is not in the Notice of Appeal - or for that matter the Amended Notice of Appeal as an express ground, if we thought that it was an arguable point, we would not let that stand in Ms Aitken’s way.  However we do not regard it as an arguable point. 

17	Firstly, as we have already pointed out, it is clear that the Tribunal had correctly directed itself to look at and decide the issue on the basis of the period up to 31 January 1999.  Secondly having properly directed itself, it is equally clear to us from paragraph 11 that the Tribunal did pay attention to the evidence, such as it was, as to Ms Aitken’s symptoms prior to 31 January 1999; and, thirdly, although in paragraph 13 of its Decision the Tribunal appears to be setting out specific evidence given by Ms Aitken in relation to the period after 31 January 1999, that is no doubt, because she was describing, in her evidence to the Tribunal, specific difficulties which she had specifically experienced during the post-31 January 1999 period.  

18	Mr Goldberg, wisely, does not go so far as to suggest that the Tribunal would have been in error in looking at anything which happened after 31 January 1999; it plainly would not have been in error because it would have been entitled and was entitled to draw inferences from what happened after 31 January 1999 as to what Ms Aitken’s state of health was before that date.  For example, if somebody who claimed to be disabled at a particular point in time was shown much later, by a video film, to have been mendacious about the continuation of her symptoms after the relevant date, that would be material which the Tribunal could take into account in considering what her symptoms were, before the relevant date, and therefore we regard it as wholly unarguable (and we have to say Mr Goldberg has not attempted to argue it) that events after 31 January 1999 could not be taken into account at all.  

19	In our view there is nothing in this second point either, and this appeal must be dismissed.